LIBRARY 

Sluological  jSemiiumu 

PRINCETON , N.  J. 

The  Stephen  Collins  Donation. 

.Vo.  Case,  y^y,  J&iftS 
No.  Shelf:  .C97 

No.  Book^  y,  ^ ^ 


y> 


Digitized  by  the  Internet  Archive 
in  2017  with,  funding  from 
Princeton  Theological  Seminary  Library 


m 


https://archive.org/details/historyoforiginf02curt_0 


HISTORY 


OF  THE 


ORIGIN,  FORMATION,  AND  ADOPTION 


OF  THE 


CONSTITUTION  OF  THE  UNITED  STATES 


NOTICES  OF  ITS  PRINCIPAL  FRAMERS. 


BY 


GEORGE  TICKNOR  CURTIS. 

IN  TWO  VOLUMES. 
VOLUME  II. 

NEW  YORK: 

HARPER  AND  BROTHERS, 


Franklin  Square. 

1858. 


Entered  according  to  Act  of  Congress,  in  the  year  1858,  by 
GEORGE  T.  CURTIS, 

in  the  Clerk’s  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CONTENTS 


OF 

VOLUME  SECOND. 


BOOK  IV. 

FORMATION  OF  THE  CONSTITUTION. 

CHAPTER  I. 

PRELIMINARY  CONSIDERATIONS.  — ORGANIZATION  OF  THE  CON- 
VENTION. — Position  of  the  States.  — Rule  of  Investiga- 


tion. 


Explanation  of  the  Author’s  Plan  .... 

Pago 

. . . 3,  4 

Preservation  of  Republican  Government 

. 5-7 

Nature  of  American  Freedom  .... 

7-9 

Its  Dependence  upon  the  Union  .... 

. 9,  10 

Intention  of  the  Framers  of  the  Constitution  . 

. 11 

Hamilton’s  Purposes  ....... 

The  Confederation  officially  condemned  . 

11,  12 

Purposes  of  the  States 

12 

The  declared  Objects  of  the  Convention 

. 13 

Nature  of  the  previous  Union  ..... 

14,  15 

General  Purpose  of  the  People  .... 

. 16 

Powers  of  the  Convention 

17 

Opposite  Views  of  the  Members  .... 

. 18 

Presence  of  Slavery  in  the  States  .... 

. 19,  20 

The  Slaves  in  some  Form  to  be  considered 

. 20-22 

How  they  were  regarded  under  the  Confederation 

21 

Complex  Relations  of  the  Subject  . 

. 22 

All  the  States  but  one  represented  in  Convention 

23 

Absence  of  Rhode  Island  ..... 

24,  25 

IV 


CONTENTS. 


Application  of  the  Minority  of  Rhode  Island  ....  25,  2G 

Position  of  the  States  in  Convention 27,  28 

Reserved  Authority  of  the  People 28,  29 

Present  Importance  of  the  Process  of  forming  the  Constitution  . 29 

Cautions  to  be  used  in  Interpretation  ......  30 


CHAPTER  II. 

Construction  op  a Legislative  Power.  — Basis  of  Repre- 
sentation and  Rule  of  Suffrage.  — Powers  of  Legisla- 
tion. 


Randolph’s  Outline  of  a Constitution  ......  32 

Referred  to  Committee  of  the  Whole 32 

Idea  of  a National  Government 32-35 

Rule  of  Suffrage  in  the  Legislature  ......  35 

First  Parties  in  the  Convention  36 

Representatives  in  one  Branch  to  be  chosen  by  the  People  . . 37 

Representation  of  the  People 39-40 

States  in  some  way  to  be  represented 40,  41 

State  Legislatures  to  choose  the  Members  of  the  other  Branch  . 41 
Ratio  of  Representation  as  between  the  States  . . . 42-44 

Basis  of  the  Representative  System 44-49 

Rule  of  Suffrage  in  the  Senate 48 

Consequences  of  Numerical  Representation  ....  49,  50 

Powers  to  be  conferred  on  the  Legislature 50 

Control  of  State  Legislation 51-55 

Population  of  the  States 55 


CHAPTER  III. 

Construction  of  the  Executive  and  TnE  Judiciary. 


Of  how  many  Persons  the  Executive  to  consist  . . . .56 

Negative  to  be  given  to  the  Executive 57 

Mode  of  choosing  the  Executive 59 

Purpose  and  Necessity  of  a Judiciary *60 

To  be  made  supreme 65 

Its  Jurisdiction 65 

Tenure  of  the  Judicial  Office 67 

Note  on  the  Judicial  Tenure 69 


CONTENTS. 


V 


CHAPTER  IV. 

Admission  of  New  States.  — Guaranty  of  Republican  Gov- 
ernment.— Power  of  Amendment.  — Oath  to  support  tiie 


New  System.  — Ratification. 

The  Union  destined  to  be  enlarged 75 

Jefferson’s  Measure  for  the  Admission  of  New  States  in  1784  . 76 

Want  of  Power  in  the  Confederation 7 7 

Power  to  be  supplied  in  the  Constitution 78 

Guaranty  of  State  Governments  to  be  provided  . . . .79 

Necessity  and  Utility  of  the  Guaranty  . . . . 80-83 

A Mode  of  Amendment  to  be  provided  84 

Oath  to  support  the  Constitution  ......  84 

Mode  of  Ratification  84-86 

Report  of  the  Committee  of  the  Whole 86 


CHAPTER  Y. 

Issue  between  the  Virginia  and  the  New  Jersey  Plans. — 
Hamilton’s  Propositions.  — Madison’s  View  of  the  New 


Jersey  Plan. 

General  Character  of  the  Virginia  Plan  89 

Difficulties  and  Obstacles  in  its  Way  . . . . . . 91 

The  chief  Cause  of  Opposition  . . . . . . .92 

The  counter  Plan  by  the  New  Jersey  Members  ....  92 

Referred  to  a Second  Committee  of  the  Whole  . . . .92 

Argument  of  Patterson  in  its  Support  ......  93 

Hamilton  interposes 94 

The  Nature  of  the  Issue  pending  . . . . . 95 

Hamilton’s  Leading  Principles  .......  95 

He  states  the  Courses  open  to  the  Convention  . . . . 96 

Explains  the  Principles  on  which  Government  must  be  founded  96-98 

Objects  to  the  New  Jersey  Plan 98,  99 

Not  satisfied  with  the  Virginia  Plan  . . . . . .99 

His  Views  of  what  must  be  done 99,  100 

Introduces  his  own  Plan 101 

It  must  be  judged  by  the  Issue  pending  ....  101  - 106 

Madison  examines  the  New  Jersey  Plan 106 

Explains  its  Effect  on  the  smaller  States  .....  107 

Declares  the  Representation  to  be  the  great  Difficulty  . . .108 

The  States  must  be  represented  proportionally  . . .109 

The  Virginia  Plan  again  adhered  to 109 

Note  on  the  Opinions  of  Hamilton  . . . . .110 


VI 


CONTENTS. 


CHAPTER  VI. 

Conflict  between  the  National  and  Federal  Systems.  — 
Division  of  the  Legislature  into  Two  Chambers.  — Dis- 
agreement of  the  States  on  .the  Nature  of  Representa- 
tion in  the  Two  Branches.  — Threatened  Dissolution  of 
the  Union. 


Different  Magnitudes  of  the  States  . 

. 116 

Inequalities  in  other  Respects  .... 

. 117 

The  Majority  and  Minority  of  States 

. 117,  118 

Views  of  New  York 

. 118-121 

Luther  Martin’s  Opinions  . 

. 121 

Position  of  Connecticut  ..... 

. 122 

Nature  of  the  Question  between  the  Larger  and 

the  Smaller 

States  

Advantages  of  a National  System  . 

. 127 

Difficulties  attending  it 

. 128 

Dangers  of  adhering  inflexibly  to  Theory 

. 129 

Division  of  the  Legislature  into  Two  Chambers  . 

. . .130 

Origin  of  the  Division  in  England  . 

. 1 . 130,  131 

Practical  Advantages  of  the  Separation 

131,  132 

Why  resisted  by  the  Minority 

. 133 

Defect  in  the  Virginia  Plan  .... 

. 133 

Mode  of  electing  the  Members 

. 134 

Rule  of  Suffrage  for  the  House  .... 

. 135 

Madison’s  View  of  the  Interest  of  the  Small  States 

. 136 

Hamilton  on  the  Consequences  of  Dissolution 

136,  137 

Evil  Results  of  a perfect  Theory 

. 137 

Purpose  of  a Senate 

. 138 

Necessity  for  a distinct  Basis  .... 

. 138-140 

Irreconcilable  Differences 

140 

Proposition  of  Compromise  rejected 

. 141 

Disagreement  on  the  Senate  .... 

141 

Consequences  of  a Failure  to  form  a Constitution 

.142-144 

CHAPTER  VII. 

First  Grand.  Compromises  of  the  Constitution.  — Population 
of  the  States  adopted  as  the  Basis  of  Representation  in 
the  House.  — Rule  for  Computing  the  Slaves.  — Equality 
of  Representation  of  the  States  adopted  for  the  Senate. 

Appointment  of  a Committee  of  Compromise  ....  145 

Representation  adjusted  by  the  Committee 146 


CONTENTS.  yii 

Character  of  the  Compromise 147 

How  treated  in  the  Convention  . . . . • .147,  148 

Apportionment  of  Representatives  re-arranged  . . . 148,149 

Objections  to  the  Plan 149,  150 

Representation  of  the  Slaves 150 

Combined  Rule  of  Numbers  and  Wealth 151 

Test  Question  respecting  the  Slaves 153 

Necessity  for  their  Admission  into  the  Basis  of  Representation  154-162 
The  Difficulties  only  to  be  adjusted  by  Compromise  . . . 162 

Form  of  the  Compromise 163,  164 

Equality  of  Vote  adopted  for  the  Senate  ....  165,166 

Value  of  this  Feature  of  the  Constitution  ....  166,167 
Population  of  the  Slaveholding  and  Non-slaveholding  States  com- 
pared   168 

CHAPTER  VIII. 

Powers  of  Legislation.  — Constitution  and  Choice  of  the 
Executive.  — Constitution  of  the  Judiciary.  — Admission 
of  New  States.  — Completion  of  the  Engagements  of  Con- 
gress. — Guaranty  of  Republican  Constitutions.  — Oath 
to  Support  the  Constitution.  — Ratification.  — Number 
of  Senators.  — Qualifications  for  Office.  — Seat  of  Gov- 
ernment. 

The  General  Interests  of  the  Union  to  be  provided  for  . . .170 

Constitution,  Laws,  and  Treaties  to  be  Supreme  . . . .170 

Appointment  and  Powers  of  the  Executive 171 

Re-eligibility  of  the  Executive 172,173 

Tenure  of  the  Office  173 

Right  of  Suffrage  in  Choice  of  the  Executive  . . . .174 

Appointment  by  Electors 175 

Construction  of  the  Judiciary  . . . . • . .176 

Admission  of  New  States 176 

Completion  of  the  Engagements  of  Congress  . . . .176 

Guaranty  of  Republican  Governments 177 

Future  Amendments 177 

Oath  to  Support  the  Constitution 177 

Ratification 177 

Objects  of  a Popular  Ratification 177-184 

Constitution  to  be  submitted  to  the  Congress  . . . .185 

Number  of  Senators 186 


CONTENTS. 


viii 


Qualifications  for  Office 186 

Property  Qualification 187 

Seat  of  the  National  Government 189 

General  Pinckney’s  Notice  respecting  Slaves  and  Exports  . . 189 

Resolutions  sent  to  Committee  of  Detail  . . . . .190 


CHAPTER  IX. 


Report  of  the  Committee  of  Detail.  — Construction  of  the 
Legislature.  — Time  and  Place  of  its  Meeting. 

Power  confided  to  the  Committee  of  Detail  . . . . .193 

Their  Draft  of  a Constitution  . . . . . . .194 

Right  of  Suffrage  . 194 

Foreign-born  Inhabitants  . . . . . . .195-198 

Immigration  to  be  encouraged 197 

Qualifications  for  Voting 198-202 

Power  of  Naturalization  199 

Qualifications  for  Office 203-210 

Spirit  of  the  Constitution  . . . . . . . .211 

Ratio  of  Representation  212-214 

Money  Bills 215  - 222 

Qualifications  of  Senators  .......  223,  224 

Number  of  Senators  . .224-226 

Method  of  Voting  in  the  Senate  ......  226  - 228 

Vacancies  in  the  Senate  and  House  ......  229 

Powers  of  the  Senate  ........  229  - 240 

Senatorial  Term  .........  240  - 242 

Disqualifications  of  Members  of  both  Branches  . . . 242  el  seq. 

Parliamentary  Corruption  .......  242-244 

Executive  Influence  ........  244-256 

Time  and  Place  for  Elections 257 

Pay  of  Members  258,  259 

Impeachments  260-262 

Quorum  of  each  House  262 

Separate  Powers  of  each  House 262-263 

President  of  the  Senate  ........  263 

Enactment  of  Laws  • . . . 264 

President’s  Negative  ........  265  — 268 

Seat  of  Government . .268-277 

Session  of  Congress 277,  278 


CONTENTS. 


IX 


CHAPTER  X. 

Report  of  the  Committee  of  Detail,  continued. — Tiie  Pow- 
ers of  Congress.  — The  Grand  Compromises  of  the  Con- 
stitution RESPECTING  COMMERCE,  EXPORTS,  AND  THE  SLAVE- 

Trade. 

General  Principles  of  the  Powers  of  Legislation  . . . 279,280 

Limitations . .280 

Exports  and  the  Slave-Trade  . 281 

Fitness  and  Unfitness  of  a Tax  on  Exports  .....  282 

Variety  in  the  Exports  of  the  United  States 283 

Impracticability  of  such  a Tax  ...  . . .'  . . 284 

The  Slave-Trade  Controversy  .....  285  et  seq. 

How  adjusted 289  et  seq. 

Restrictions  on  the  Revenue  and  Commercial  Powers  . . . 289 

Regulation  of  Commerce  .......  291  et  seq. 

Settlement  of  the  Revenue  and  Commercial  Powers  . 295  et  seq. 

Propositi tion  of  Compromise 301 

Arrangement  of  the  Compromise  .......  303 

Value  of  the  Compromise  307 

Benefits  of  the  Revenue  and  Commercial  Powers  ....  309 


CHAPTER  XI. 

Report  of  TnE  Committee  of  Detail,  continued.  — Tiie  Re- 


maining Powers  of  Congress.  — Restraints  upon  Congress 

AND  UPON  THE  STATES. 

Purpose  of  the  Revenue  Power  ......  318-322 

Preference  of  Ports  prohibited  ......  323,324 

Duties,  &c.  to  be  equal  ........  325 

Commerce  with  the  Indian  Tribes  .....  .325-328 

Uniform  Rule  of  Naturalization  .......  328 

Coining  and  Regulating  Value  of  Money  .....  328 

Standard  of  Weights  and  Measures  . . . . .328 

Post-Offices  and  Post-Roads  . . . . . . .328 

Power  to  borrow  Money  .......  328  - 330 

Tribunals  inferior  to  the  Supreme  Court  .....  330 

Rules  as  to  Captures  .........  330 

Offences  against  the  Law  of  Nations 331 

Counterfeiting  . 332 

War  Power  ...........  332 

VOL.  II.  b 


X 


CONTENTS. 


Raising  and  supporting  Armies  333 

Navy 334 

Power  over  the  Militia 334  _ 338 

Necessary  and  proper  Laws  to  execute  the  Specific  Powers  . . 338 

Patents  and  Copyrights 339 

Power  over  Territories 341  -358 

Admission  of  New  States 358 

Restraints  upon  Congress 359 

Suspension  of  the  habeas  corpus 359 

Bills  of  Attainder 360 

Ex  post  facto  Laws 360  et  seq. 

Titles  of  Nobility  . . . . • . . . . . . 362 

Gifts  and  Emoluments  from  foreign  Princes  . . . . 362 

Restraints  upon  the  States 362  et  seq. 

Obligation  of  Contracts 365 

State  Imposts 369 

Tonnage  Duties 370 

Other  Restraints . . . .371 


CHAPTER  XII. 

Report  of  the  Committee  of  Detail,  continued.  — Suprem- 
acy of  tiie  National  Governmemt.  — Definition  and  Pun- 


ishment of  Treason. 

Principles  of  the  National  Supremacy 372 

Preamble  of  the  Constitution  . . . . . . .373 

Supremacy  effected  through  the  Judicial  Power  . . . .374 

Ratification  . . . . . . . . . .375 

Meaning  and  Operation  of  the  Supremacy  . . . 376-381 
Its  Effect  on  the  Growth  of  the  Country  ....  381-384 
Definition  and  Punishment  of  Treason  ....  384-387 


CHAPTER  XIII. 

Report  of  the  Committee  of  Detail,  continued.  — Election 
and  Powers  of  the  President. 

Election  of  the  President,  why  not  made  directly  by  the  People  . 388 

Origin  of  the  Plan  of  Electors .389 

Choice  of  President  and  "Vice-President  . . . .390-395 

Succession  of  the  Yice-President  to  the  Presidency  . . 395-398 


CONTENTS. 


XI 


•Mode  of  filling  the  Vacancy  when  there  is  no  Vice-President  . . 398 

Mode  of  choosing  the  Electors  ......  398,  399 

Opening  of  the  Votes  of  the  Electors  .....  399,400 

Modifications  of  the  Mode  of  Election  made  by  the  Amendment  400,  401 
Contingency,  for  -which  no  Provision  is  made  . . . 401-403 

Qualifications  for  the  Presidency 404 

Salary  of  the  President  .......  404  — 407 

Question  of  a Cabinet,  or  a Council 407  -409 

Powers  of  the  President  ......  409  et  seq. 

Executive  Power 412, 413 

Pardoning  Power 413, 414 

Treaty-making  Power  .' 414-417 

Appointing  Power 417,418 

To  give  Information  on  the  State  of  the  Union  . . . .419 

Power  to  convene  Congress 419 


CHAPTER  XIV. 

Report  of  the  Committee  of  Detail,  continued. — Forma- 
tion of  the  Judicial  Power. 


Scope  of  the  Judicial  Power 421-431 

Its  Purposes 431-445 


CHAPTER  XV. 

Report  of  the  Committee  of  Detail,  continued.  — Effect 
of  Records.  — Inter-State  Privileges.  — Fugitives  from 
Justice  and  from  Service. 


Intimacy  of  the  Relations  between  the  People  of  the  States  . . 447 

Difference  between  the  Confederation  and  the  Constitution  . 447,  448 

Privileges  of  Citizenship  in  all  the  States 448 

Effect  of  Records . . .449 

Fugitives  from  Justice 449,  450 

Fugitives  from  Service 450-467 


Xll 


CONTENTS. 


CHAPTER  X Y I . 

Report  of  the  Committee  of  Detail,  continued.  — Guaranty 
of  Republican  Government  and  Internal  Tranquillity.  — 
^ Oath  to  support  the  Constitution.  — Mode  of  Amend- 
ment. — Ratification  and  Establishment  of  the  Consti- 
tution. — Signing  by  the  Members  of  the  Convention. 


Purpose  of  the  Guaranty  of  Republican  Government  . . . 468 

Meaning  of  the  Guaranty  ........  469 

American  Sense  of  a “ Republican  ” Government  . . . 471 

Amendment  a Conservative  Element  . . . . . .473 

Distinction  between  Amendment  and  Revolution  . . 473-474 

Settlement  of  the  Mode  of  Amending  the  Constitution  . .474-477 

Restrictions  on  the  Power  of  Amendment  . . . . 477,  478 

Oath  to  support  the  Constitution  . . . . . . .478 

Establishment  of  the  Constitution  provided  for  . . . 479-485 

Signatures  of  the  Delegates  .......  485-487 

The  Issue  presented 487 


B O 0 K Y. 

ADOPTION  OF  THE  CONSTITUTION. 

CHAPTER  I. 

General  Reception  of  the  Constitution.  — Hopes  of  a Re- 
union avith  Great  Britain.  — Action  of  the  Congress.  — 
State  of  Feeling  in  Massachusetts,  Neav  York,  Virginia, 
South  Carolina,  Maryland,  and  Neav  Hampshire.  — Ap- 
pointment of  their  Conventions. 


Public  Anxiety  ..........  491 

Rumors  about  the  Bishop  of  Osnaburg  . . . . .492 

Scheme  of  the  Tories  ........  493,  494 

Publication  of  the  Constitution  .......  495 

Its  Friends  and  Opponents  .......  495,  496 

Position  of  the  People 497,  498 


CONTENTS. 

xiii 

Reception  of  the  Instrument  in  Congress 

. 499 

Action  upon  it  ...... 

. 500 

Reception  in  Massachusetts  . . . . . 

. ' . .501 

Reception  in  New  York  ..... 

. 502-504 

Reception  in  Virginia  ...... 

. 505,  506 

Jefferson’s  Opinion  ...... 

506,  507 

Course  recommended  by  Jefferson 

. 508 

Washington’s  Exertions  ..... 

. 509 

Patrick  Henry’s  Course  in  the  Legislature 

. 510 

Debate  in  the  Legislature  of  South  Carolina 

. 511 

Action  of  the  Legislature  of  Maryland  . 

.512 

Luther  Martin’s  Address  ..... 

512-514 

State  of  Opinion  in  New  Hampshire 

. 514 

The  real  Crisis  anticipated  .... 

. . .515 

Chances  for  the  Constitution  . . . . 

. 516 

Uncertainty  of  the  Result 

. 517 

CHAPTER  II. 

Ratifications  of  Delaware,  Pennsylvania,  New  Jersey, 
Georgia,  and  Connecticut,  without  Objection.  — Close 
of  the  Year  1787.  — Beginning  of  the  Year  1788.  — Rati- 
fication of  Massachusetts,  the  Sixth  State,  with  Propo- 
sitions of  Amendment.  — Ratification  of  Maryland  with- 
out Objection.  — South  Carolina,  the  Eighth  State, 

ADOPTS,  AND  PROPOSES  AMENDMENTS. 


Delaware  ratifies  unanimously 518 

Prestige  of  Philadelphia  .519 

James  Wilson  in  the  Convention  of  Pennsylvania  ....  520 

His  Defence  of  the  Constitution  ......  521  - 524 

Ratification  of  Pennsylvania  . . . . . . . .524 

Position  of  New  Jersey  . 524,525 

Ratifies  the  Constitution  .........  526 

Position  of  Georgia . 526 

Ratifies  th^  Constitution  527 

Convention  of  Connecticut . 527,  528 

Her  Adoption . . . .529 

New  Aspect  of  the  Subject 529,  530 

Convention  of  Massachusetts  assembles 530 

Nature  of  her  Opposition 531 


XIV 


CONTENTS. 


Value  of  her  State  Constitution  . . . . . • . 532 

Parties  in  her  Convention 532,  533 

Samuel  Adams  and  the  Opposition 533,  534 

The  Federal  Leaders  . . . . . . . . .534 

They  recognize  the  Necessity  for  Amendments  ....  535 

Dangers  of  this  Admission 535,  536 

Hancock  proposes  the  Amendments 537 

Ratification  procured  by  them 538 

Conduct  of  the  Minority 539 

Nature  of  the  Amendments 539,  540 

The  People  of  Boston  rejoice  540 

Influence  of  Massachusetts  on  New  Hampshire  ....  541 

Critical  Position  of  Maryland 542 

Her  Ratification 543 

Rejoicings  in  Baltimore  ........  543 

Good  News  from  South  Carolina  ......  544 

Liberal  Conduct  of  her  People 544,  545 

Defence  of  the  Constitution  by  her  Delegates  ....  546 

The  Convention  admits  the  Justice  of  the  Commercial  Power  . .547 

Efforts  of  the  Opposition  . . . . . . . .548 

Charleston  celebrates  the  Constitution 548 

CHAPTER  III. 

Ratifications  of  New  Hampshire,  Virginia,  and  New  York, 
with  Proposed  Amendments. 

New  Hampshire,  Virginia,  and  New  York  are  to  act  in  the  same 

Month  549 

Hamilton’s  Expresses  arranged  550 

Virginia  Convention  meets  . . . . . . . .551 

Patrick  Henry  leads  the  Opposition 552 

His  peculiar  Tendencies 553 

Character  of  his  Politics 554 

Edmund  Randolph’s  Position 555 

Unexpectedly  supports  the  Constitution 556 

George  Mason  on. the  Power  of  Direct  Taxation  . . . .557 

Henry  denounces  the  Constitution 558 

Madison  defends  it 559 

He  denies  the  Dangers  imputed  to  it 560 

Henry  vouches  the  Advice  of  Jefferson 561 


CONTENTS. 


XV 


Jefferson’s  Advice  misconstrued  .......  562 

Henry  persists  in  pressing  his  View  of  it  . . . . • 563 

It  strengthens  the  Opposition 564 

They  employ  the  Mississippi  Question  . ...  . . . 565 

True  Aspect  of  that  Question 566 

Madison’s  Answer  to  the  Opposition  . . . . . .567 

Negotiations  opened  with  the  Anti-Federalists  of  New  York  and 

Pennsylvania  568 

The  Convention  of  New  York  assembles  ......  568 

Hamilton  at  the  Intersection  of  his  Expresses  ....  569 

His  Critical  and  Responsible  Position 569,  570 

Nature  of  his  Ambition 570,571 

His  Opinion  of  the  Purposes  of  the  Opposition  . . . .571 

His  Answer  to  their  Plans 572 

He  receives  News  of  the  Ratification  by  New  Hampshire  . .573 

Chancellor  Livingston  announces  the  Ratification  of  the  Ninth  State  574 
The  Opposition  not  subdued  . . . . . . . .574 


Hamilton’s  Conduct  at  this  Crisis 575-578 

He  despatches  a Courier  to  Richmond  . . . . . .578 

But  the  Constitution  is  ratified  before  the  Courier  arrives  . . 578 

How  its  Ratification  was  obtained 579-581 

Henry’s  magnanimous  Submission  . . . . . .581 

The  News  from  Virginia  received  at  Philadelphia  ....  582 
Elaborate  Procession  in  Honor  of  the  Constitution  . . . 583 

Hamilton  receives  the  News  from  Virginia  .....  584 

He  consults  his  Friends 585 

They  force  the  Opposition  to  an  Issue  . ‘ 586 

Hamilton  advises  with  Madison  . . . . . . .587 

An  Unconditional  Ratification  carried  ......  588 

The  Federalists  unite  in  a Call  for  a Second  General  Convention  588 


Their  Justification  for  so  doing  .....  .589-592 

The  City  of  New  York  celebrates  the  Adoption  of  the  Constitution  592 
Honors  paid  to  Hamilton  by  the  People 592-595 


CHAPTER  IV. 

Action  of  North  Carolina  and  Rhode  Island.  — Conclusion. 

Convention  of  North  Carolina  assembles 596 

Refuses  to  ratify  the  Constitution  . . . . . . .597 

Elements  of  the  Opposition  in  Rhode  Island  . . . .598 


XVI 


CONTENTS. 


Local  Pai'ties  in  the  State 599 

Town  and  Country  divided  . 600 

Spirit  of  a Majority  of  the  People 600,  G01 

They  reject  the  Constitution 602 

Embarrassing  Position  of  the  Union 603 

Conclusion 604 


APPENDIX. 

Constitution  of  the  United  States  of  America  ....  607 

Articles  in  Addition  to,  and  Amendment  of,  the  Constitution  of  the 

United  States  of  America  . . . . . . .619 


Index 623 


BOOK  IV. 


FORMATION  OF  THE  CONSTITUTION. 


VOL.  II. 


1 


■ 


% 

CHAPTER  I. 


Preliminary  Considerations.  — Organization  of  the  Con- 
vention. — Position  of  the  States.  — Rule  of  Investi- 
gation. 

After  long  wanderings  through  the  struggles,  the 
errors,  and  the  disappointments  of  the  earlier  years 
of  our  constitutional  history,  I now  come  to  consider 
that  memorable  assembly  to  which  they  ultimately 
led,  in  order  to  describe  the  character  of  an  era  that 
offered  the  promise  of  a more  vigorous  nationality, 
and  presented  the  alternative  of  final  dissolution. 
How  the  people  of  the  United  States  were  enabled 
to  seize  the  happy  choice  of  one  of  these  results, 
and  to  escape  the  disasters  of  the  other,  is  to  be 
learned  by  examining  the  mode  in  which  the  Con- 
stitution of  the  United  States  was  framed. 

In  approaching  this  interesting  topic,  I am  natu- 
rally anxious  to  place  myself  at  once  on  a right 
understanding  with  the  reader,  — to  apprise  him  of 
the  purpose  of  the  discussions  to  which  he  is  in- 
vited, and  to  guard  against  expectations  which  might 
be  entertained,  but  which  will  not  be  fulfilled. 

In  a work  designed  for  general  and  — as  I ven- 
ture to  hope  it  may  prove  — for  popular  use,  it 
would  be  out  of  place,  as  it  certainly  would  be 


4 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


impracticable  within  the  limits  of  a single  volume, 
to  undertake  the  explanation  and  discussion  of  all 
those  particular  questions  of  construction  that  must 
constantly  arise  under  almost  every  clause  and  fea- 
ture of  such  an  instrument  as  the  Constitution  of  the 
United  States,  and  which,  as  our  whole  experience 
has  taught  us,  are  fruitful  both  of  extensive  debate 
and  of  wide  as  well  as  honest  diversities  of  opinion. 
I shall  consider  questions  of  construction  only  so 
far  as  may  be  necessary  to  elucidate  my  subject; 
for  I propose,  in  writing  the  history  of  the  for- 
mation of  the  Constitution,  to  describe  rather  those 
great  modifications  in  the  principles  and  structure 
of  the  Union  that  took  place  in  the  period  at 
which  we  have  now  arrived  in  the  course  of  this 
work ; to  state  the  essential  features  of  the  new 
government ; and  to  trace  the  process  by  which  they 
were  evolved  from  the  elements  to  which  the  framers 
of  that  government  resorted. 

Happily  for  us,  the  materials  for  such  a descrip- 
tion are  ample.  The  whole  civil  change  which 
transformed  the  character  of  our  Union,  and  es- 
tablished for  it  a national  government,  took  place 
peacefully  and  quietly,  within  a single  twelvemonth. 
It  was  attended  with  circumstances  which  enable  us 
to  ascertain  its  character  with  a high  degree  of  cer- 
tainty. The  leading  purposes  that  were  entertained 
and  carried  out  were  not  left  to  the  conjecture  of 
posterity,  but  were  recorded  by  deliberative  assem- 
blies, whose  acts  of  themselves  expressed  and  ascer- 
tained the  objects  and  intentions  of  the  national 


Ch.  I] 


REPUBLICAN  FREEDOM. 


5 


will.  First  framed  by  an  assembly  in  which  the 
States  participating  in  the  change  were  fully  repre- 
sented, and  subsequently  debated  and  ratified  in 
conventions  of  the  people  in  the  separate  States,  the 
general  nature  and  design  of  the  Constitution  may 
be  traced  and  understood  without  serious  difficulty. 

But  to  the  right  understanding  of  its  nature  and 
objects,  a careful  examination  of  the  proceedings  of 
the  national  Convention  is,  in  the  first  place,  essen- 
tial. Before  we  enter,  however,  upon  this  exami- 
nation, there  are  certain  preliminary  facts  that  ex- 
plain the  circumstances  in  which  the  Convention 
was  assembled,  and  which  will  enable  us  to  ap- 
preciate the  results  at  which  it  arrived.  To  these, 
therefore,  the  reader  is  now  desired  to  turn. 

First  of  all,  then,  it  is  to  be  remembered  that  the 

national  Convention  of  1787  was  assembled  with 

♦ 

the  great  object  of  framing  a system  of  govern- 
ment for  the  united  interests  of  the  thirteen  States, 
by  which  the  forms  and  spirit  of  republican  liberty 
could  be  preserved.  The  warnings  and  teachings  of 
the  ten  preceding  years,  which  I have  attempted  to 
describe  in  a previous  volume,  had  presented  to  the 
people  of  these  States  the  serious  question,  whether 
their  system  of  conducting  their  common  affairs  then 
rested  upon  principles  that  could  secure  their  per- 
manent prosperity  and  happiness.  That  the  States 
had  national  interests ; that  each  of  them  stood  in 
relations  to  the  others,  and  to  the  rest  of  the  world, 
which  its  separate  and  unaided  power  was  unable 
to  manage  with  success ; and  that  even  its  own 


6 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


internal  peace  and  prosperity  required  some  exter- 
nal protection,  — had  been  brought  home  to  the 
convictions  of  the  people  by  an  experience  that 
commenced  with  the  day  on  which  they  declared 
themselves  independent,  and  had  now  forced  upon 
them  its  last  stern  and  sorrowful  lesson  in  the  gen- 
eral despondency  of  the  national  heart.  As  they 
turned  anxiously  and  fearfully  to  the  near  and  dear 
interests  involved  in  their  separate  and  internal  con- 
cerns, they  saw  that  self-government  was  a neces- 
sity of  their  existence.  They  saw  that  equality  be- 
fore the  law  for  the  whole  people  ; the  right  and  the 
power  to  appoint  their  own  rulers ; the  right  and 
the  power  to  mould  and  form  and  modify  every 
law  and  institution  at  their  own  sovereign  will,  — 
to  lay  restraints  upon  their  own  power,  or  not  to 
lay  them,  — to  limit  themselves  by  public  compact 
to  a particular  mode  of  action,  or  to  remain  free  to 
choose  other  modes,  — were  the  essential  conditions 
of  American  society.  In  a word,  they  beheld  that 
republican  and  constitutional  liberty,  which,  with 
all  that  it  comprehends  and  all  that  it  bestows, 
was  not  only  altogether  lovely  in  their  eyes,  but 
without  which  there  could  be  no  peace,  no  social 
order,  no  tranquillity,  and  no  safety  for  them  and 
their  posterity. 

This  liberty  they  knew  must  be  preserved.  They 
loved  it  with  passionate  devotion.  They  had  been 
trained  for  it  by  the  whole  course  of  their  political 
and  social  history.  They  had  fought  for  it  through 
a long  and  exhausting  war.  Their  habits  of  thought 


Ch.  I.J 


REPUBLICAN  FREEDOM. 


7 


and  action,  their  cherished  principles,  their  hopes, 
their  life  as  a people,  were  all  bound  up  in  it; 
and  they  knew  that,  if  they  suffered  it  to  be  lost, 
there  would  remain  for  them  nothing  but  a her- 
itage of  shame,  and  ages  of  confusion,  strife,  and 
sorrow. 

Great  as  was  their  devotion  to  this  republican 
liberty,  and  ardent  as  was  their  love  of  it,  they  did 
not  value  it  too  highly.  The  doctrine  that  all  power 
resides  originally  in  the  people ; that  they  are  the 
source  of  all  law ; that  their  will  is  to  be  pronounced 
by  a majority  of  their  numbers,  and  can  know  no 
interruption,  — was  not  first  discovered  in  America. 
But  to  this  principle  of  a democracy  the  people  of 
the  American  States  had  added  two  real  and  impor- 
tant discoveries  of  their  own.  They  had  ascertained 
that  their  own  power  might  be  limited  by  compacts 
which  would  regulate  and  define  the  modes  in  which 
it  shall  be  exercised.  Their  written  constitutions 
had  taken  the  place  of  the  royal  charters  which 
formerly  embraced  the  fundamental  conditions  of 
their  political  existence,  but  with  this  essential  dif- 
ference, — that  whereas  the  charter  emanated  from  a 
foreign  sovereign  to  those  who  claimed  no  original 
authority  for  themselves,  the  constitution  proceeded 
from  the  people,  who  claimed  all  authority  to  be 
resident  in  themselves  alone.  While  the  charter 
embraced  a compact  between  the  foreign  sovereign 
and  his  subjects  who  lived  under  it,  the  constitu- 
tion, framed  by  the  people  for  their  own  guidance 
in  exercising  their  sovereign  power,  became  a com- 


8 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


pact  between  themselves  and  every  one  of  then- 
number.  In  this  substitution  of  one  supreme  au- 
thority for  another,  some  limitation  of  the  mode  in 
which  the  sovereign  power  was  to  act  became  the 
necessary  consequence  of  the  change ; for  as  soon 
as  the  people  had  declared  and  established  their  own 
sovereignty,  some  declaration  of  the  nature  of  that 
sovereignty,  and  some  prescribed  rules  for  its  exer- 
cise, became  immediately  necessary,  and  that  declara- 
tion and  those  rules  became  at  once  a limitation  of 
power,  extending  to  every  citizen  the  protection  of 
every  principle  involved  in  them,  until  the  same 
authority  which  had  established  should  change 
them. 

Against  the  evils,  too,  that  might  arise  from  the 
unrestricted  control  of  a majority  of  the  people  over 
the  fundamental  law,  — against  the  abuse  of  their 
power  by  frequent  and  passionate  changes  of  the 
rules  which  limit  its  exercise  for  the  time  being,  — 
they  had  discovered  the  possibility  of  limiting  the 
mode  in  which  the  organic  law  itself  was  to  be 
changed.  By  prescribing  certain  forms  in  which 
the  change  was  to  be  made,  and  especially  by  re- 
quiring the  fact,  that  a change  had  been  decreed  by 
those  having  a right  to  make  it,  to  be  clearly  and 
carefully  ascertained  by  a particular  evidence,  they 
guarded  the  fundamental  law  itself  against  usurpa- 
tion and  fraud,  and  greatly  diminished  the  influences 
of  haste,  prejudice,  and  passion. 

Such  was  the  nature  of  American  republican  lib- 
erty; not  then  fully  understood,  not  then  fully 


Ch.  I ] 


REPUBLICAN  PREEDOM. 


9 


developed  in  all  the  States,  but  yet  discovered,  — a 
liberty  more  difficult  of  attainment,  more  elaborate 
in  its  structure,  and  therefore  more  needful  of  de- 
fence, than  any  of  the  other  forms  of  constitutional 
freedom  under  which  civilized  man  had  hitherto 
been  found. 

Now,  the  fate  of  republican  liberty  in  America,  at 
that  day,  depended  directly  upon  the  preservation  of 
some  union  of  the  States,  and  not  simply  upon  the 
existing  State  institutions,  or  upon  the  desires  of  the 
people  of  each  separate  State.  It  is  true,  that  their 
previous  training  and  history,  and  their  own  intelli- 
gent choice,  had  made  the  States,  in  all  their  forms 
and  principles,  republican  governments  ; and  almost 
all  of  them  had,  at  this  period,  written  constitutions, 
in  which  the  American  ideal  of  such  governments 
was  aimed  at,  and  more  or  less  nearly  reached. 
But  how  long  were  these  constitutions,  these  repub- 
lican forms,  to  exist  1 What  was  to  secure  them  1 
Who  was  to  stand  as  their  guarantor  and  protector, 
and  to  vindicate  the  right  of  the  majority  to  govern 
and  alter  and  modify  l Who  was  to  enforce  the 
rules  which  the  people  of  a State  had  prescribed  for 
their  own  action,  when  threatened  by  an  insurgent 
and  powerful  minority  1 Who  was  to  protect  them 
against  foreign  invasion  or  domestic  violence  1 There 
was  no  common  sovereign,  or  supreme  arbiter,  to 
whom  they  could  all  alike  appeal.  There  was  no 
power  upon  this  broad  continent  to  whom  the  States 
could  intrust  the  duty  of  preserving  their  insti- 
tutions inviolate,  except  the  people  of  the  United 
2 


VOL.  II. 


10 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


States  in  some  united  and  sovereign  capacity.  No 
single  State,  however  great  its  territory  or  its  popu- 
lation, could  have  discharged  these  duties  for  itself 
by  its  unaided  power ; for  no  one  of  them  could 
have  repelled  a foreign  invasion  alone,  and  the  gov- 
ernment of  one  of  the  most  respectable  and  oldest  of 
them,  whose  people  had  exhibited  as  much  energy 
as  any  other  community  in  America,  had  almost 
succumbed  to  the  first  internal  disorder  which  it 
had  been  forced  to  encounter. 

The  preservation  of  the  Union  of  the  States  was, 
therefore,  essential  to  the  continuance  of  their  in- 
dependence, and  to  the  continuance  of  republican 
constitutional  liberty,  — of  that  liberty  which  re- 
sides in  law  duly  ascertained  to  be  the  authentic 
will  of  a majority.  With  this  vastly  important  ob- 
ject before  them,  the  people  of  the  States  of  course 
could  give  to  the  Union  no  form  that  would  not 
reflect  the  same  spirit,  and  harmonize  with  the  na- 
ture of  their  existing  institutions.  To  have  left 
their  State  governments  resting  upon  the  broad 
basis  of  popular  freedom  acting  through  repub- 
lican forms,  and  to  have  framed,  or  to  have  at- 
tempted to  frame,  national  institutions  on  any  other 
model,  would  have  been  an  act  of  political  suicide. 
To  enable  the  Union  to  preserve  and  uphold  the 
authority  of  the  people  within  the  respective  States, 
it  must  itself  be  founded  on  the  same  authority, 
must  embody  the  same  principles,  spring  from  the 
same  source,  and  act  through  similar  institutions. 

Accordingly,  the  student  of  this  portion  of  our 


Ch.  I.] 


PURPOSES  OE  THE  UNION. 


11 


history  will  find  everywhere  the  clearest  evidence 
that,  so  far  as  the  purpose  of  forming  a national 
government  of  a new  character  was  entertained  at 
the  period  when  the  Convention  wras  assembled,  a 
republican  form  for  that  government  wras  a foregone 
conclusion.  Not  only  did  no  State  entertain  any 
purpose  but  this,  but  no  member  of  the  Convention 
entered  that  body  with  any  expectation  of  a different 
result.  There  is  but  one  of  the  statesmen  compos- 
ing that  assembly  to  whom  a purpose  of  creating 
what  has  been  called  a monarchical  government  has 
ever  been  distinctly  imputed ; and  with  regard  to 
him,  as  much  as  to  every  other  person  in  the  Con- 
vention, I shall  show  that  the  imputation  is  unjust. 
Hamilton,  — for  it  is  to  him  of  course  that  I now 
allude,  — together  with  many  others,  believed  that  a 
failure,  at  that  crisis,  to  establish  a government  of 
sufficient  energy  to  pervade  the  whole  Union  with 
the  necessary  control,  would  bring  on  at  once  a state 
of  things  that  must  end  in  military  despotism. 
Hence  his  efforts  to  give  to  the  republican  form, 
which  he  acknowledged  to  be  the  only  one  suited  to 
the  circumstances  and  condition  of  the  country,  the 
highest  degree  of  vigor,  stability,  and  power  that 
could  be  attained. 

Another  very  important  fact,  which  the  reader  is 
to  carry  along  with  him  into  the  examination  of  the 
proceedings  of  the  Convention,  is,  that  by  the  judg- 
ment of  the  old  Congress,  and  of  every  State  in  the 
Union  save  one,1  the  Confederation  had  been  de- 


1 Rhode  Island. 


12 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


dared  defective  and  inadequate  to  the  exigencies 
of  government,  and  the  preservation  of  the  Union. 
That  this  declaration  was  expressly  intended  to  em- 
brace the  principle  of  the  Union,  or  looked  to*  the 
substitution  of  a system  of  representative  govern- 
ment, to  which  the  people  of  the  States  should  be 
the  immediate  parties,  in  the  place  of  their  State 
governments,  does  not  appear  from  the  proceedings 
which  authorized  and  constituted  the  Convention. 
In  substance,  those  proceedings  ascertained  that 
there  were  great  defects  in  the  existing  Confedera- 
tion ; that  there  were  important  purposes  of  the 
federal  Union  which  it  had  failed  to  secure ; and  that 
a Convention  of  all  the  States,  for  the  purpose  of 
revising  and  amending  the  Articles  of  Confederation, 
was  the  most  probable  means  of  establishing  a firm 
general  government,  and  was  therefore  to  be  held. 
But  what  were  the  original  purposes  of  the  Union, 
or  what  purposes  had  come  to  be  regarded  as  essen- 
tial to  the  public  welfare,  was  not  indicated  in  most 
of  the  acts  constituting  the  Convention.  Virginia, 
whose  declaration  preceded  that  of  Congress  and  of 
the  other  States,  and  on  whose  recommendation  they 
all  acted,  had  made  the  commercial  interests  of  the 
United  States  the  leading  object  of  the  proposed 
assembly;  but  she  had  also  declared  the  necessity 
of  extending  the  revision  of  the  federal  system  to  all 
its  defects,  and  had  advised  further  concessions  and 
provisions,  in  order  to  secure  the  great  objects  for 
which  that  system  was  originally  instituted.  These 
general  and  somewhat  indefinite  purposes  were  de- 


Ch.  I.] 


PURPOSES  OF  THE  UNION. 


13 


dared  by  the  other  States,  without  any  material 
variation  from  the  terms  employed  by  Virginia.1 

Hence  it  is  that  the  previous  history  of  the  Union 
becomes  important  to  be  examined  before  we  can 
appreciate  the  great  general  purposes  of  its  original 
formation,  as  they  were  understood  at  the  time  of 
these  proceedings,  or  can  appreciate  the  further 
purposes  that  were  intended  to  be  engrafted  upon  it. 
The  declarations  made  by  the  Congress  and  the 
States  seem  obviously  to  embrace  two  classes  of  ob- 
jects ; the  one  is  what,  in  the  language  of  Virginia, 
they  conceived  to  have  been  “ the  great  objects  for 
which  the  federal  government  was  instituted  ” ; the 
other  is  the  “ exigencies  of  the  Union,”  for  peace  as 
well  as  for  war,  as  they  had  been  displayed  and  de- 
veloped by  the  defects  of  the  Confederation,  and  by 
its  failures  to  secure  the  general  welfare.  The  first 
of  these  classes  of  objects  could  be  ascertained  by 
reference  to  the  terms  and  provisions  of  the  Articles 
of  Confederation ; the  second  could  only  be  ascer- 
tained by  resorting  to  the  history  of  the  confederacy, 
and  by  regarding  its  recorded  failures  to  promote 
the  general  prosperity  as  proofs  of  what  the  exigen- 
cies of  the  Union  demanded  in  a general  govern- 
ment.2 

1 New  Jersey  specifically  con-  the  original  purposes  for  which  the 
templated  a regulation  of  com-  Union  was  formed  in  1775  or  in 
merce.  See  the  proceedings  of  1781.  But  it  became  one  of  the  exi- 
Congress,  and  those  of  the  States,  gencies  of  the  Union,  by  becoming 
ante,  Yol.  I.  pp.  361,  367,  notes.  a national  want,  and  by  the  revealed 

2 Thus,  for  example,  the  regu-  incompetency  of  most  of  the  States 
lation  of  commerce  was  not  one  of  to  deal  with  the  subject  so  as  to 


14 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


In  the  first  volume  of  this  work  we  have  exam- 
ined the  nature  and  operation  of  the  previous  Union, 
in  both  of  its  aspects,  and  we  must  carry  the  results 
of  that  examination  along  with  us  in  studying  the 
formation  of  the  new  system.  We  have  seen  the 
character  of  the  Union  which  -was  formed  by  the 
assembling  of  the  Revolutionary  Congress,  to  enable 
the  States  to  secure  their  independence  of  the  crown 
of  Great  Britain.  We  have  seen  that,  from  the 
jealousies  of  the  States,  even  this  Congress  never 
assumed  the  whole  revolutionary  authority  which  its 
situation  and  office  would  have  entitled  it  to  exer- 
cise. We  have  seen  also,  that,  from  the  want  of  a 
properly  defined  system,  and  from  the  absence  of  all 
proper  machinery  of  government,  it  was  unable  to 
keep  an  adequate  army  in  the  field,  until,  in  a mo- 
ment of  extreme  emergency,  it  conferred  upon  the 
Commander-in-chief  the  powers  of  a dictator.  We 
have  witnessed  the  establishment  of  the  Confedera- 
tion, — a government  which  bore  within  itself  the 
seeds  of  its  own  destruction ; for  it  relied  entirely, 
for  all  the  sinews  of  war,  upon  requisitions  on  the 
States,  with  which  the  States  perpetually  refused  or 
neglected  to  comply.  We  have  thus  seen  the  war 
lingering  and  languishing  until  foreign  aid  could 
be  procured,  and  until  loans  of  foreign  money  sup- 
plied the  means  of  keeping  it  alive  long  enough  for 
the  admirable  courage,  perseverance,  and  energy  of 

promote  their  own  welfare,  or  to  for  which  we  must  resort,  as  the 
avoid  injury  to  their  confederates.  framers  of  the  Constitution  resort- 
So  of  a great  many  other  things,  ed,  to  the  history  of  the  times. 


Ch.  I.] 


FAILURE  OF  THE  CONFEDERATION. 


15 


Washington  to  bring  it  to  a close,  against  all  obsta- 
cles and  all  defects  of  the  civil  power.  When  the 
war  was  at  length  ended,  and  the  duty  of  paying  the 
debts  thus  incurred  to  the  meritorious  and  generous 
foreign  creditor,  and  the  more  than  meritorious  and 
generous  domestic  creditor,  pressed  upon  the  con- 
science of  the  country,  we  have  seen  that  there  was 
no  power  in  the  Union  to  command  the  means  of 
paying  even  the  interest  on  its  obligations.  We 
have  seen  that  the  treaty  of  peace  could  not  be  ex- 
ecuted ; that  the  Confederation  could  do  nothing  to 
secure  the  republican  governments  of  the  States  ; 
that  the  commerce  of  the  country  could  not  be 
protected  against  the  policy  of  foreign  governments, 
constantly  watching  for  advantages  which  the  clash- 
ing interests  of  the  different  States  at  all  times  held 
out  to  them ; and  that,  with  the  rule  which  re- 
quired the  assent  of  nine  States  to  every  important 
measure,  it  was  possible  for  the  Congress  to  refuse 
or  neglect  to  do  what  it  was  of  the  last  importance 
to  the  people  of  the  United  States  they  should  do. 
Finally,  we  have  seen  that  what  now  kept  the  ex- 
isting Union  from  dissolution,  as  it  had  been  one 
immediate  inducement  to  its  formation,  was  the 
cession  of  the  vast  Northwestern  territory  to  the 
United  States ; and  that  over  this  territory  new 
States  were  forming,  to  take  their  places  in  the 
band  of  American  republics,  while  the  Confederation 
possessed  no  sufficient  power  to  legislate  for  their 
condition,  or  to  secure  their  progress  toward  the 
great  ends  of  civil  liberty  and  prosperity. 


16 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


A retrospection,  therefore,  of  the  previous  history 
of  the  Confederacy,  while  it  reveals  to  us  the  public 
appreciation  of  the  national  wants  and  the  national 
failures,  displays  the  general  purposes  contemplated 
by  the  States  when  they  undertook  effectually  to 
provide  for  “ the  exigencies  of  the  Union.”  But 
what  the  nature  of  the  proposed  changes  was  to  be, 
and  in  what  mode  they  were  to  be  reached,  was,  as 
we  have  seen,  left  undetermined  by  the  constituent 
States  when  they  assembled  the  Convention ; and 
we  are  now,  therefore,  brought  to  the  third  prelimi- 
nary fact,  necessary  to  be  regarded  in  our  future 
inquiries,  namely,  the  condition  of  the  actual  pow- 
ers of  that  assembly. 

The  Confederation  has  already  been  described  as  a 
league,  or  federal  alliance  between  independent  and 
sovereign  States,  for  certain  purposes  of  mutual  aid. 
So  far  as  it  could  properly  be  called  a government, 
it  was  a government  for  the  States  in  their  corporate 
capacities,  with  no  power  to  reach  individuals ; so 
that,  if  its  requirements  were  disregarded,  compul- 
sion could  only  be  directed  — if  against  anybody  — 
against  the  delinquent  member  of  the  association, 
the  State  itself. 

At  the  time  when  the  Convention  was  assembled, 
the  general  purpose  entertained  throughout  the 
Union  appears  to  have  been,  by  a revision  and 
amendment  of  the  Articles  of  Confederation,  to  give 
to  the  Congress  power  over  certain  subjects,  of 
which  that  instrument  did  not  admit  of  its  taking 
cognizance,  and  to  add  such  provisions  as  would 


Ch.  I.]  POWERS  OF  THE  CONVENTION.  17 

render  its  power  efficient.  But  it  was  not  at  all 
understood  by  the  country  at  large,  that,  while  the 
nominal  powers  of  the  Confederation  might  be  in- 
creased. at  the  pleasure  of  the  States,  those  powers 
could  not  be  made  effectual  without  a change  in  the 
principle  of  the  government.  Hence,  the  idea  of 
abolishing  the  Confederation,  and  of  erecting  in  its 
place  a government  of  a totally  different  character, 
was  not  entertained  by  the  States,  or,  if  entertained 
at  all,  was  not  expressed  in  the  public  acts  of  the 
States  by  which  the  Convention  was  called.  This 
idea,  however,  was  perhaps  not  necessarily  excluded 
by  the  terms  employed  by  the  States  in  the  instruc- 
tion of  their  delegates  ; and  we  may  therefore 
expect  to  find  the  members  of  that  assembly,  in 
construing  or  defining  the  powers  conferred  upon  it, 
taking  a broader  or  narrower  view  of  those  powers, 
according  to  the  character  of  their  own  minds,  the 
nature  of  their  previous  public  experience,  and 
the  real  or  supposed  interests  of  their  particular 
States. 

Many  of  the  persons  who  had  been  clothed  with 
this  somewhat  vague  and  indeterminate  authority 
to  “ revise  ” the  existing  federal  system,  and  to 
agree  upon  and  propose  such  amendments  and  fur- 
ther provisions  as  might  effectually  provide  for  the 
“ exigencies  of  the  Union,”  were  statesmen  who  had 
passed  the  active  period  of  their  previous  lives  in 
vain  endeavors  to  secure  efficient  action  for  the  pow- 
ers possessed  by  the  Congress,  both  under  the  revo- 
lutionary government  and  under  the  Confederation. 

3 


YOL.  II. 


18 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


They  were  selected  by  their  States  on  account  of  this 
very  experience,  and  in  order  that  their  counsels 
might  be  made  available  to  the  country.1  They  saw 
that  the  mere  grant  of  further  powers,  or  the  mere 
consent  that  the  Congress  should  have  jurisdiction 
over  certain  new  subjects,  would  be  of  no  avail  while 
the  government  continued  to  rest  upon  the  vicious 
principle  of  a naked  federal  league,  leaving  the  ques- 
tion constantly  to  recur,  whether  the  compact  was 
not  virtually  dissolved  by  the  refusal  of  individual 
States  to  discharge  their  federal  obligations.  These 
persons,  consequently,  came  to  the  Convention  feel- 
ing strongly  the  necessity  for  a radical  change  in  the 
principles  and  structure  of  the  national  Union ; but 
feeling  also  great  embarrassment  as  to  the  mode  in 
which  that  change  was  to  be  effected. 

On  the  other  hand,  there  were  other  members  of 
the  Convention  who  came  with  a disposition  to 
adhere  to  the  more  literal  meaning  of  their  in- 
structions, and  who  did  not  concur  in  the  alleged 
necessity  for  a radical  change  of  the  principle  of  the 
government.  Fearing  that  the  power  and  conse- 
quence of  their  own  States  would  be  diminished  by 
the  introduction  of  numbers  as  a basis  of  represen- 
tation, they  adhered  to  the  system  of  representation 
by  States,  and  insisted  that  nothing  wTas  needed  to 
cure  the  evils  that  pressed  upon  the  country,  but  to 
enlarge  the  jurisdiction  of  the  Congress  under  that 
system.  They  were  naturally,  therefore,  the  first 


1 See  the  preamble  to  the  act  of  Yirginia,  ante,  Yol.  I.  p.  367,  note. 


Ch.  I.] 


EXISTENCE  OF  SLAVERY. 


19 


to  suggest  and  the  last  to  surrender  the  objection, 
that  the  Convention  had  received  no  authority,  ei- 
ther from  the  States  or  from  the  Congress,  to  do 
anything  more  than  revise  the  Articles  of  Confed- 
eration, and  recommend  such  further  powers  as 
might  be  engrafted  upon  the  present  system  of  the 
Union. 

That  the  construction  of  their  powers  by  the  lat- 
ter class  of  the  members  of  the  Convention  com- 
ported with  the  mere  terms  of  the  acts  of  the  States, 
and  with  the  general  expectation,  I have  more  than 
once  intimated ; but  we  shall  see,  as  the  experiment 
of  framing  the  new  system  proceeded,  that  the  views 
of  the  other  class  were  equally  correct ; that  the 
addition  of  further  powers  to  the  existing  system  of 
the  Union  would  have  left  it  as  weak  and  inefficient 
as  it  had  been  before ; and  that  what  were  univer- 
sally regarded  as  the  “ exigencies  of  the  Union  ” — 
which  was  but  another  name  for  the  wants  of  the 
States  — could  only  be  provided  for  by  the  creation 
of  a different  basis  for  the  government. 

Another  fact  which  we  are  to  remember  is  the 
presence,  in  five  of  the  States  represented  in  the 
Convention,  of  large  numbers  of  a distinct  race,  held 
in  the  condition  of  slaves.  Whatever  mode  of  con- 
stituting a national  system  might  be  adopted,  if  it 
was  to  be  a representative  government,  the  existence 
of  these  persons  must  be  recognized  and  provided 
for  in  some  way.  Whatever  ratio  of  representation 
might  be  established,  — whether  the  States  were  to 
be  represented  according  to  the  numbers  of  their 


20 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


inhabitants,  or  according  to  their  wealth,  — this  part 
of  the  population  of  the  slave-holding  States  pre- 
sented one  of  the  great  difficulties  to  be  encoun- 
tered. A change  of  their  condition  was  not  now, 
and  never  had  been,  one  of  the  powers  which  those 
States  proposed  to  confide  to  the  Union.  In  no 
previous  form  of  the  confederacy  had  any  State  pro- 
posed to  surrender  its  own  control  over  the  condition 
of  persons  within  its  limits,  or  its  poAver  to  deter- 
mine Avhat  persons  should  share  in  the  political 
rights  of  that  community ; and  no  State  that  noAv 
took  part  in  the  neAv  effort  to  amend  the  present 
system  of  the  Union  proposed  to  surrender  this 
control  0Arer  its  OAvn  inhabitants,  or  sought  to  ac- 
quire any  control  over  the  condition  of  persons 
AATithin  any  of  the  other  States. 

The  deliberations  of  the  Convention  Avere  there- 
fore begun  Avith  the  necessary  concession  of  the  fact, 
that  slaA’ery  existed  in  some  of  the  States,  and  that 
the  existence  and  continuance  of  that  condition  of 
large  masses  of  its  population  was  a matter  exclu- 
sively belonging  to  the  authority  of  each  State  in 
Avhich  they  Avere  found.  Not  only  Avas  this  conces- 
sion implied  in  the  terms  upon  Avhich  the  States  had 
met  for  the  reArision  of  the  national  system,  but  the 
further  concession  of  the  right  to  have  the  slaATe 
populations  included  in  the  ratio  of  representation 
became  equally  unavoidable.  They  must  be  re- 
garded either  as  persons  or  as  chattels.  If  they 
Avere  persons,  and  the  basis  of  the  neAv  government 
Avas  to  be  a representation  of  the  inhabitants  of  the 


Ch.  I.] 


POSITION  OF  THE  SLAVES. 


21 


States  according  to  their  numbers,  — the  only  mode 
of  representation  consistent  with  republican  govern- 
ment, — their  precise  condition,  their  possession  or 
want  of  political  rights,  could  not  affect  the  proprie- 
ty of  including  them  in  some  form  in  the  census, 
unless  the  basis  of  the  government  should  be  com- 
posed exclusively  of  those  inhabitants  of  the  States 
who  were  acknowledged  by  the  laws  pf  the  States 
as  free.  The  large  numbers  of  the  slaves  in  some 
of  the  States  would  have  made  a government  so 
constructed  entirely  unequal  in  its  operation,  and 
would  have  placed  those  States,  if  they  had  been 
willing  to  enter  it,  — as  they  never  could  have 
been,  — in  a position  of  inferiority  which  their 
wealth  and  importance  would  have  rendered  unjus- 
tifiable. On  the  other  hand,  if  the  wealth  of  the 
States  was  to  be  the  measure  of  their  representation 
in  the  new  government,  the  slaves  must  be  included 
in  that  wealth,  or  they  must  be  treated  simply  as  per- 
sons. The  slaves  might  or  might  not  be  persons,  in 
the  view  of  the  law,  where  they  were  found ; bnt 
they  were  certainly  in  one  sense  property  under  that 
law,  and  as  such  they  were  a very  important  part  of 
the  wealth  of  the  State.  The  Confederation  had 
already  been  obliged  to  regard  them,  in  considering 
a rule  by  which  the  States  should  contribute  to  the 
national  expenses.  They  had  found  it  to  be  just, 
that  a State  should  be  required  to  include  its  slaves 
among  its  population,  in  a certain  ratio,  when  it  was 
called  upon  to  sustain  the  national  burdens  in  pro- 
portion to  its  numbers  ; and  they  had  recommended 


22 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  adoption  of  this  fundamental  rule  as  an  amend- 
ment of  the  federal  Articles.1  Either  in  one  capaci- 
ty, therefore,  or  in  the  other,  or  in  both,  — either 
as  persons  or  as  property,  or  as  both,  — the  Union 
had  already  found  it  to  be  necessary  to  consider  the 
slaves.  In  framing  the  new  Union,  it  was  equally 
necessary,  as  soon  as  the  equality  of  representation 
by  States  should  give  place  to  a proportional  and 
unequal  representation,  to  regard  these  inhabitants 
in  one  or  the  other  capacity,  or  in  both  capacities,  or 
to  leave  the  States  in  which  they  were  found,  and  to 
which  their  position  was  a matter  of  grave  impor- 
tance, out  of  the  Union. 

This  difficulty  should  be  rightly  appreciated  and 
fairly  stated  by  the"  historian  who  attempts  to  de- 
scribe its  adjustment,  and  it  should  be  carefully 
regarded  by  the  reader.  What  reflections  may  arise 
upon  the  facts  that  we  have  to  consider,  — what 
should  be  the  judgment  of  an  enlightened  benevo- 
lence upon  the  whole  matter  of  slavery,  as  it  was 
dealt  with  or  affected  by  the  Constitution  of  the 
United  States,  — may  perhaps  find  an  appropriate 
place  in  some  future  discussion. 

Here,  however,  the  reader  must  approach  the 
threshold  of  the  subject  with  the  expectation  of 
finding  it  surrounded  by  many  and  complex  rela- 
tions. History  should  undoubtedly  concern  itself 


1 See  the  Resolve  of^Congress,  gin  of  the  proportion  of  three 
passed  April  18,  1783,  proposing  fifths,  in  counting  the  slaves.  See 
to  amend  the  Articles  of  Confeder-  post,  Chapter  II.  p.  48  ; ante, 
ation.  This  Resolve  was  the  ori-  Vol.  I.  p.  213,  note  2. 


Ch.  I] 


STATES  REPRESENTED. 


23 


with  the  interests  of  man.  But  it  is  bound,  as  it 
makes  up  the  record  of  events  which  involve  the 
destinies  and  welfare  of  different  races,  to  look  at 
the  aggregate  of  human  happiness.  It  is  not  to 
rest,  for  its  final  conclusions,  in  seeming  or  in  real 
inconsistencies ; in  real  or  apparent  conflicts  be- 
tween opposite  principles  ; or  in  the  mere  letter  of 
those  adjustments  by  which  such  conflicts  have  been 
avoided,  or  reconciled,  or  acknowledged.  It  is  to 
arrive  at  results.  It  is  to  draw  the  wide  deduction 
which  will  show  whether  human  nature  has  lost  or 
gained  by  the  conditions  and  forms  of  national  ex- 
istence which  it  undertakes  to  describe.  As  the 
question  should  always  be,  in  such  inquiries,  wheth- 
er any  different  and  better  result  was  attainable 
under  all  the  circumstances  of  the  case,  — a ques- 
tion to  which  a calm  and  dispassionate  examination 
will  generally  find  an  answer,  — the  amount  of  pos- 
itive good  that  has  been  gained  for  all,  or  of  positive 
evil  that  has  been  averted  from  all,  is  the  true  justi- 
fication of  existing  institutions. 

The  Convention,  when  fully  organized,  embraced 
a representation  from  all  the  States,  with  the  single 
exception  of  Rhode  Island. 

Connecticut,  which  had  steadily  opposed  the  meas- 
ure of  a Convention,1  came  into  it  at  a late  period, 
and  did  not  send  a delegation  until  a fortnight  after 
the  time  appointed  for  its  session.2  It  had  always 
been  the  inclination  of  that  State  to  retain  in  her 


1 Madison,  Elliot,  Y.  96. 


2 Ibid.  124. 


24 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


own  hands  the  regulation  of  commerce ; she  had 
taxed  imports  from  some  of  her  neighbors,  and  this 
advantage,  as  it  was  considered,  had  made  her  reluc- 
tant to  enlarge  the  powers  of  the  Union.  Her 
delegation  appeared  on  the  28  th  of  May. 

That  of  New  Hampshire  was  not  appointed  until 
the  latter  part  of  June,1  and  did  not  appear  until  the 
23d  of  July.2 

Ilhode  Island,  small  in  territory  and  in  numbers, 
but  favorably  situated  for  the  pursuits  of  commerce, 
had  strenuously  resisted  every  effort  to  enlarge  the 
powers  of  the  Union.  Ever  since  the  Declaration 
of  Independence,  the  people  of  that  State  had  clung 
to  the  opportunity,  afforded  by  their  situation,  of 
taxing  the  contiguous  States,  through  their  con- 
sumption of  commodities  brought  into  its  numerous 
and  convenient  ports.  For  this  object  they  had 
refused  their  assent  to  the  revenue  system  of  1783 ; 
and  as  the  failure  of  that  system  had  prevented  an 
exhibition  of  some  of  the  benefits  to  be  derived  from 
uniform  fiscal  regulations,  the  local  government  of 
Ilhode  Island  adhered,  in  1786-7,  to  v’hat  they 
had  always  regarded  as  the  true  interest  of  their 
State.  They  did,  it  is  true,  appoint  delegates  to  the 
commercial  convention  at  Annapolis,  but  the  per- 
sons appointed  did  not  attend  ; and  when  the  resolve 
which  sanctioned  the  Convention  of  1787  was  adopt- 
ed in  Congress,  Ilhode  Island  was  not  represented 
in  that  body. 


1 Elliot,  I.  126. 


2 Ibid.  351. 


Ch.  I.] 


STATES  REPRESENTED, 


25 


When  the  recommendation  of  the  Congress  came 
before  the  legislature  of  the  State,  there  appears  to 
have  been  a strong  party  in  favor  of  making  an 
appointment  of  delegates  to  the  Convention,  The 
mercantile  part  of  the  population  had  come  to  en- 
tertain more  liberal  and  far-seeing  notions  of  their 
true  interests  ; and  the  views  of  some  of  the  more 
intelligent  of  the  farmers  and  mechanics  had  been 
much  modified.  But  by  far  the  larger  portion  of 
the  people  — wedded  to  a system  of  paper  money, 
which  furnished  almost  their  sole  currency,  and 
vaguely  apprehending  that  a new  government  for 
the  Union  would  destroy  it,  seeking  the  abolition 
of  debts,  public  and  private,  and  jealous  of  all  in- 
fluence from  without  — were  in  a condition  to  be 
ruled  by  their  demagogues,  rather  than  to  be  en- 
lightened and  aided  by  their  statesmen.  In  May, 
the  legislature  rejected  a proposition  to  appoint 
delegates  to  the  Federal  Convention;  and  in  June, 
although  the  upper  house,  or  Governor  and  Coun- 
cil, embraced  the  measure,  it  was  again  negatived  in 
the  House  of  Assembly  by  a large  majority.  The 
minority  then  formed  an  organization,  which  never 
lost  sight  of  the  national  relations  of  the  State,  and 
which  finally  succeeded  in  bringing  her  into  the 
Union  under  the  new  Constitution,  in  1790. 

Immediately  after  the  first  rejection  of  the  pro- 
posal to  unite  with  the  other  States  in  reforming 
the  Confederation,  a body  of  commercial  persons  in 
Providence  addressed  a letter  to  the  Convention,  ex- 
pressing the  opinion  that  full  power  for  the  regu- 

VOL.  II.  4 


26 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


lation  of  the  commerce  of  the  United  States,  both 
foreign  and  domestic,  ought  to  be  vested  in  the 
national  council,  and  that  effectual  arrangements 
should  also  be  made  for  giving  operation  to  the  ex- 
isting powers  of  Congress  in  their  requisitions  for 
national  purposes.  Their  object  in  this  communica- 
tion was  to  prevent  an  impression  among  the  other 
States,  unfavorable  to  the  commercial  interests  of 
Rhode  Island,  from  growing  out  of  the  circumstance 
of  their  being  unrepresented  in  the  Convention. 
Expressing  the  hope  that  the  result  of  its  delibera- 
tions would  be  to  “ strengthen  the  Union,  promote 
the  commerce,  increase  the  power,  and  establish  the 
credit  of  the  United  States,”  they  pledged  their  in- 
fluence and  best  exertions  to  secure  the  adoption  of 
that  result  by  the  State  of  Rhode  Island.  The 
signers  of  this  letter  formed  the  nucleus  of  that 
party  which  afterwards  fulfilled  the  pledge  thus 
given  to  the  Convention. 

The  absence  of  Rhode  Island  did  not  occasion  a 
serious  embarrassment.  The  resolve  of  Congress 
recommending  the  Convention  did  not  expressly 
require  the  presence  of  all  the  States ; and  the  com- 
missions given  by  each  of  the  States  wrhich  adopted 
the  recommendation  clearly  implied  that  their  dele- 
gates were  to  meet  and  act  with  the  delegations  of 
such  other  States  as  might  see  fit  to  be  represented. 
The  communication  of  the  minority  party  in  Rhode 
Island  was  received  and  read,  and  the  interests  of 
that  State  were  attended  to  throughout  the  pro- 
ceedings. 


Ch.  I.] 


POSITION  OF  THE  STATES. 


27 


We  are  now  carefully  to  observe  tbe  position  of 
the  States  when  thus  assembled  in  Convention. 
Their  meeting  was  purely  voluntary ; they  met  as 
equals  ; and  they  were  sovereign  political  communi- 
ties, whom  no  power  could  rightfully  coerce  into  a 
change  of  their  condition,  and  with  whom  such  a 
change  must  be  the  result  of  their  own  free  and 
intelligent  choice,  governed  by  no  other  than  the 
force  of  circumstances.  That  they  were  independent 
of  foreign  control  was  ascertained  by  the  Declara- 
tion of  Independence,  by  the  war,  and  by  the  Treaty 
of  Peace.  That  they  were  independent  of  each 
other,  except  so  far  as  they  had  made  certain  mutual 
stipulations  in  the  Articles  of  Confederation,  was  the 
necessary  result  of  the  events  which  had  made  the 
people  of  each  State  its  rightful  and  exclusive  sov- 
ereigns. We  must  recur,  therefore,  to  the  Articles 
of  Confederation  for  the  purpose  of  determining  the 
nature  of  the  position  in  which  the  States  now 
stood. 

When  the  States,  in  1781,  entered  into  the  con- 
federacy then  established,  they  reserved  their  free- 
dom, sovereignty,  and  independence,  and  every 
jurisdiction,  power,  and  right  not  expressly  dele- 
gated to  the  United  States.  By  the  provisions  of 
the  federal  compact,  these  separate  and  sovereign 
communities  committed  to  a general  council  the 
management  of  certain  interests  common  to  them 
all ; in  that  council  they  were  represented  equally, 
each  State  having  one  vote ; but  as  neither  the 
powers  conferred  upon  that  body,  nor  the  restraints 


28 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


imposed  by  the  States  upon  themselves,  were  to  be 
enforced  by  any  agreed  sanctions,  the  parties  to  the 
compact  were  left  to  a voluntary  performance  of 
their  stipulations.  Still,  there  were  certain  powers 
which  the  States  agreed  should  be  exercised  by  the 
United  States  in  Congress  assembled,  and  certain 
duties  towards  the  confederacy  which  they  agreed 
to  discharge ; and  therefore,  so  far  as  authority  and 
jurisdiction  had  been  conferred  upon  the  United 
States,  so  far  they  had  been  surrendered  by  the 
States.  The  peculiarity  of  the  case  was,  that  the 
powers  surrendered  were  ineffectual  for  the  want  of 
appropriate  means  of  coercion. 

These  powers  the  States  did  not  propose  to  recall. 
The  Union  was  unbroken,  though  feeble,  and  trem- 
bling on  the  verge  of  dissolution.  The  purpose  of 
all  was  to  strengthen  and  secure  its  powers,  to  add 
somewhat  to  their  number,  and  to  render  the  whole 
efficient  and  operative  by  providing  some  form  of 
direct  and  compulsory  authority.  For  this  end,  as 
members  of  an  existing  confederacy,  in  possession  of 
all  the  powers  not  previously  delegated  to  the  Union, 
the  States  had  assembled  upon  the  same  equality, 
and  under  the  same  form  of  representation,  with 
which  they  had  always  acted  in  the  Congress. 

As  the  States  had  conferred  certain  powers  upon 
the  Confederation,  so  it  was  equally  competent  to 
them  to  enlarge  and  add  to  those  powers.  They 
had  formed  State  governments,  and  established  writ- 
ten constitutions.  But  the  people  of  the  States,  and 
not  their  governments,  held  the  supreme,  absolute, 


Ch.  I.] 


RULE  OF  INVESTIGATION. 


29 


and  uncontrollable  power.  They  had  created,  and 
they  could  modify  or  destroy ; they  could  withdraw 
the  powers  conferred  upon  one  class  of  agents,  and 
bestow  them  upon  another  class.  What  was  want- 
ed was  the  discovery  of  some  mode  of  proceeding, 
which,  by  involving  the  consent  of  the  State  govern- 
ments, would  avoid  the  appearance  and  the  reality 
of  revolution,  and  make  the  contemplated  changes 
consist  with  the  American  idea  of  constitutional 
action. 

Here  also  it  seems  proper  to  state  the  reasons 
why  the  process  of  framing  the  Constitution  is  so 
important  as  to  demand  a careful  exhibition  of  the 
proceedings  of  those  to  whom  this  great  undertak- 
ing was  intrusted. 

The  Convention  had  confessedly  no  power  to 
enact  or  establish  anything.  It  was  a representa- 
tive body,  clothed  with  authority  to  agree  upon  a 
system  of  government  to  be  recommended  to  the 
adoption  of  their  constituents.  The  constituents 
were  twelve  of  the  thirteen  States  of  the  confeder- 
acy, each  having  an  equal  voice  and  vote  in  the 
proceedings ; but  neither  the  assent  nor  the  dissent 
of  a State,  in  the  Convention,  to  the  whole  system, 
or  to  any  part  of  it,  bound  the  people  of  that  State 
to  receive  or  to  reject  it  when  it  should  come  before 
them.  Still,  the  results  of  the  various  determina- 
tions of  a majority  of  the  States  in  this  body ; the 
purposes  of  particular  provisions  which  those  results 
clearly  disclose  ; the  relations  which  they  evince  be- 
tween the  different  parts  of  the  system,  — are  all  of 


30 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  utmost  importance  in  determining  the  sense  in 
which  the  whole  ultimately  came  before  the  enact- 
ing authority  for  approval  or  rejection.  If,  for  ex- 
ample, a majority  of  the  States  came  to  a very  early 
determination  that  the  principle  of  the  government 
should  no  longer  be  that  of  an  exclusive  representa- 
tion of  States,  but  should  include  a representation 
of  the  people  of  the  different  States  in  some  fair 
and  equitable  ratio  ; if  they  adhered  to  this  through- 
out their  deliberations,  and  adjusted  everything  with 
reference  to  it ; and  if,  when  they  finally  provided 
for  a mode  of  establishing  the  new  system,  they  sub- 
mitted it  directly  to  the  people  of  each  State  to  de- 
clare whether  they  would  be  so  represented,  — it  is 
manifest  that  these  results  of  their  action  have 
much  to  do  with  the  inquiry,  What  is  the  true 
nature  of  the  present  government  of  the  United 
States  l 

Every  student  of  the  proceedings  and  discussions 
in  the  national  Convention  should,  however,  be 
careful  not  to  extend  this  principle  of  general  in- 
terpretation to  the  views,  opinions,  or  arguments 
expressed  or  employed  by  individuals  in  that  assem- 
bly. The  line  of  argument  or  illustration  adopted 
by  different  members  may  be  more  or  less  important, 
as  tending  to  explain  the  scope  or  purpose  of  a 
particular  decision  arrived  at  by  a vote  of  the  Con- 
vention ; and  occasionally,  as  will  be  seen  in  refer- 
ence to  the  arrangements  which  were  finally  entered 
into  as  mutual  concessions  or  compromises  between 
different  interests,  the  discussions  will  be  found  to 


Ch.  I.] 


RULE  OF  INVESTIGATION. 


31 


be  of  great  significance  and  importance.  But  it  is, 
after  all,  to  the  results  themselves,  and  to  the  prin- 
ciples involved  in  the  various  decisions  of  the  Con- 
vention, as  indicated  by  the  votes  taken,  that  we 
are  to  look  for  the  landmarks  that  are  to  guide  our 
inquiries  into  the  fundamental  changes,  improve- 
ments, and  additions  proposed  by  the  Convention  to 
the  country,  and  afterwards  adopted  by  the  people 
of  the  States. 


CHAPTER  II. 


Construction  of  a Legislative  Power.  — Basis  of  Repre- 
sentation, and  Rule  of  Suffrage.  — Powers  of  Legis- 
lation. 


The  Convention  having  been  organized,  Governor 
Randolph  of  Virginia1  submitted  a series  of  resolu- 
tions, embracing  the  principal  changes  that  ought 
to  be  proposed  in  the  structure  of  the  federal 
system. 

Mr.  Charles  Pinckney  of  South  Carolina  also  sub- 
mitted a plan  of  government,  which,  with  Governor 
Randolph’s  resolutions,  was  referred  to  a committee 
of  the  whole.  It  is  not  necessary  here  to  state  the 
details  of  these  several  systems ; for  although  that 
introduced  by  Randolph  gave  a direction  to  the  de- 
liberations of  the  committee,  the  results  arrived  at 
were  in  some  respects  materially  different. 

The  first  distinct  departure  that  was  made  from 
the  principles  of  the  Confederation  was  involved  in 
one  of  the  propositions  brought  forward  by  Governor 
Randolph,  “ that  a National  government  ought  to 
be  established,  consisting  of  a supreme  legislative,  ex- 
ecutive, and  judiciary”  ; and  as  this  proposition  was 


1 Edmund  Randolph.  See  ante , Yol.  I.  p.  480. 


Cn.  II.] 


NATIONAL  AND  FEDERAL. 


33 


affirmed  in  the  committee  by  a vote  of  six  States, 
it  is  important  to  understand  the  sense  in  which  it 
was  understood  by  them.1 

Most  of  the  framers  of  the  Constitution  seem  to 
have  considered  that  a compact  between  sovereign 
States,  which  rested  for  its  efficacy  on  the  good  faith 
of  the  parties,  and  had  no  other  compulsory  opera- 
tion than  a resort  to  arms  against  a delinquent 
member,  was  a “ federal  ” government.  This  was 
the  principle  of  the  Confederation.  At  this  early 
stage  of  their  deliberations,  the  idea  which  was  in- 
tended by  those  who  favored  a change  of  that  prin- 
ciple, when  they  spoke  of  a “ national  ” government, 
was  one  that  would  be  a supreme  power  with  re- 
spect to  certain  national  objects  committed  to  it,  and 
that  would  have  some  kind  of  direct  compulsory 
action  upon  individuals.  This  distinction  was  un- 
derstood by  all  to  be  real  and  important.  It  led 
directly  to  the  question  of  the  powers  of  the  Con- 
vention, and  formed  the  early  line  of  division  be- 
tween those  who  desired  to  adhere  to  the  existing 
system,  and  those  who  aimed  at  a radical  change. 
The  former  admitted  the  necessity  for  a more  effec- 
tive government,  and  supposed  that  the  Confedera- 
tion could  be  made  so  by  distributing  its  powers 
into  the  three  great  departments  of  a legislative,  ex- 
ecutive, and  judiciary;  but  they  did  not  suggest  any 

1 Massachusetts,  Pennsylvania,  ed  (Colonel  Hamilton  ay , Mr. 
Delaware,  Virginia,  North  Caro-  Yates  no).  Madison,  Elliot,  V. 
lina,  South  Carolina,  ay,  6 ; Con-  132,  134. 
necticut,  no,  1 ; New  York  divid- 


yol.  n. 


34 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


mode  by  which  those  powers  could  be  made  supreme 
over  the  authority  of  the  separate  States.  The  lat- 
ter contended,  that  there  could  be  no  such  thing  as 
government  unless  it  were  a supreme  power,  and 
that  there  could  be  but  one  supreme  power  over  the 
same  subjects  hi  the  same  community  ; that  supreme 
power  could  not  from  the  nature  of  things  act  on 
the  States  collectively,  in  the  usual  and  peaceful 
mode  in  which  the  operations  of  government  ought 
to  be  conducted,  but  that  it  must  be  able  to  reach 
individuals ; and  that,  as  the  Confederation  could 
not  operate  in  this  way,  the  distribution  of  its  pow- 
ers into  distinct  departments  would  be  no  improve- 
ment upon  the  present  condition  of  things. 

But  when  the  distinction  between  a national  and 
a federal  government  had  been  so  far  developed,  the 
subject  was  still  left  in  a great  degree  vague  and 
indeterminate.  What  was  to  mark  this  distinction 
as  real,  and  give  it  practical  effect  1 By  what  means 
was  the  government,  which  was  now,  as  all  admit- 
ted, a mere  federal  league  between  sovereign  States; 
to  become,  in  any  just  sense,  national  ? The  idea 
of  a nation  implies  the  existence  of  a people  united 
in  their  political  rights,  and  possessed  of  the  same 
political  interests.  A national  government  must  be 
one  that  exercises  the  political  rights,  and  protects 
the  political  interests,  of  such  a people.  But,  hith- 
erto, the  people  of  the  United  States  had  been 
divided  into  distinct  sovereignties ; and  although  by 
the  Articles  of  Confederation  some  portion  of  the 
sovereign  power  of  each  of  the  separate  States  had 


Ch.  II.] 


EULE  OF  STJFFEAGE. 


35 


been  vested  in  a general  government,  that  govern- 
ment had  been  found  inefficient,  and  incapable  of 
resisting  the  great  power  that  had  been  reserved  to 
the  respective  States,  and  was  constantly  exerted 
by  them.  The  difficulty  was,  that  the  constituent 
parties  to  the  federal  union  were  themselves  politi- 
cal governments  and  sovereigns ; the  people  of  the 
States  had  no  direct  representation,  and  no  direct 
suffrage,  in  the  general  legislature ; and  as  in  a re- 
publican government  the  representation  and  the  suf- 
frage must  determine  its  character,  it  became  obvious 
that,  in  order  to  establish  a national  government  that 
would  embrace  the  political  rights  and  interests  of 
the  people  inhabiting  the  States,  the  basis  of  repre- 
sentation and  the  rule  of  suffrage  must  be  changed. 

It  being  assumed  that  the  new  government  was 
to  be  divided  into  the  three  departments  of  the  legis- 
lative, executive,  and  judiciary,  several  questions  at 
once  presented  themselves  with  regard  to  the  con- 
stitution of  the  national  legislature.  Was  it  to 
consist  of  one  or  of  two  houses  \ and  if  the  latter, 
what  was  to  be  the  representation  and  the  rule  of 
suffrage  in  each  ? 

The  resolutions  of  Governor  Randolph  raised  the 
question  as  to  the  rule  of  suffrage,  before  the  com- 
mittee had  determined  on  the  division  of  the  legis- 
lative power  into  two  branches.  One  of  his  prop- 
ositions was,  “ That  the  rights  of  suffrage  in  the 
national  legislature  ought  to  be  proportioned  to  the 
quotas  of  contribution,  or  to  the  number  of  free  in- 
habitants, as  the  one  or  the  other  rule  may  seem 


36 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


best  in  different  cases.”  This  was  no  sooner  pro- 
pounded, than  a difficulty  was  suggested  by  the 
deputies  of  the  State  of  Delaware,  which  threat- 
ened to  impede  the  whole  action  of  the  Convention. 
They  declared  that  they  felt  restrained  by  their 
commissions  from  assenting  to  any  change  of  the 
rule  of  suffrage,  and  announced  their  determination 
to  retire  from  the  Convention  if  such  a change  were 
adopted.  The  firmness  and  address  of  Madison  and 
Gouvemeur  Morris  surmounted  this  obstacle.  They 
declared  that  the  proposed  change  was  absolutely 
essential  to  the  formation  of  a national  government ; 
but  they  consented  to  postpone  the  question,  having 
ascertained  that  it  would  finally  be  carried.1 

The  committee  thereupon  immediately  determined 
that  the  national  legislature  should  consist  of  two 
branches,2  and  proceeded  to  consider  the  mode  of 
representation  and  suffrage  in  both.  As  the  discus- 
sions proceeded,  the  members  became  divided  into 
two  parties  upon  the  general  subject ; the  one  was 
for  a popular  basis  and  a proportionate  representa- 
tion in  both  branches ; the  other  was  in  favor  of  an 
equal  representation  by  States  in  both.  The  first 
issue  between  them  was  made  upon  the  House,  or 
Avhat  was  termed  the  first  branch  of  the  legislature. 
On  the  one  side  it  was  urged,  that  to  give  the  elec- 
tion of  this  branch  to  the  people  of  the  States 
would  make  the  new  government  too  democratic ; 

1 Madison,  Elliot,  V.  134,  135.  wishes  of  Dr.  Franklin,  was  given 

2 Ibid.  135.  The  vote  of  Penn-  for  a single  house, 
sylvania,  in  compliance  with  the 


Ch.  II  ] 


REPRESENT  ATI  YE  SYSTEM. 


' 37 


that  the  people  were  unsafe  depositaries  of  such  a 
power,  not  because  they  wanted  virtue,  but  because 
they  were  liable  to  be  misled ; and  that  the  State 
legislatures  would  be  more  likely  to  appoint  suit- 
able persons.  On  the  other  hand,  it  was  admitted 
that  an  election  of  the  more  numerous  branch  of 
the  national  legislature  by  the  people  would  intro- 
duce a true  democratic  principle  into  the  govern- 
ment, and  this,  it  was  said,  was  necessary.  It  was 
urged  that  this  branch  of  the  legislature  ought  to 
know  and  sympathize  with  every  part  of  the  com- 
munity, and  ought  therefore  to  be  taken,  not  only 
from  different  parts  of  the  republic,  but  also  from 
different  districts  of  the  larger  members  of  it.  The 
broadest  possible  basis,  it  was  said,  ought  to  be 
given  to  the  new  system ; and  as  that  system  was 
to  be  republican,  a direct  representation  of  the  peo- 
ple was  indispensable.  To  increase  the  weight  of 
the  State  legislatures,  by  making  them  electors  of 
the  national  legislature,  would  only  perpetuate  some 
of  the  worst  evils  of  the  Confederation. 

A decided  majority  of  the  States  sustained  the 
election  of  the  first  branch  of  the  national  legisla- 
ture by  the  people.1  Great  efforts  were,  however, 
subsequently  made  to  change  this  decision ; and  the 
discussion  which  ensued  on  a motion  that  this 
branch  should  be  elected  by  the  State  legislatures, 
throws  much  light  upon  the  nature  of  the  govern- 

1 Massachusetts,  New  York,  South  Carolina,  no,  2 ; Connecti- 
Pennsylvania,  Virginia,  North  Car-  cut  and  Delaware  divided, 
olina,  Georgia,  ay,  6 ; New  Jersey, 


38 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV 


ment  which  the  friends  of  an  election  by  the  people 
were  aiming  to  establish.  From  that  discussion  it 
appears  that  the  idea  was  already  entertained  of 
forming  a government  that  should  have  a vigorous 
authority  derived  directly  from  the  people  of  the 
States,  — one  that  should  possess  both  the  force  and 
the  sense  of  the  people  at  large.  For  the  formation 
of  such  a government  one  of  two  courses  was  neces- 
sary : either  to  abolish  the  State  governments  alto- 
gether; or  to  leave  them  in  existence,  and  to  regard 
the  people  of  each  State  as  competent  to  with- 
draw from  their  local  governments  such  portions  of 
their  political  power  as  thev  might  see  fit  to  bestow 
upon  a national  government.  The  latter  plan  was 
undoubtedly  a novelty  in  political  science;  for  no 
system  of  government  had  yet  been  constructed  in 
which  the  individual  stood  in  the  relation  of  sub- 
ject to  two  distinct  sovereignties,  each  possessed 
of  a distinct  sphere,  and  each  supreme  in  its  own 
sphere.  But  if  the  American  doctrine  were  true, 
that  all  supreme  power  resides  originally  in  the 
people,  and  that  all  governments  are  constituted  by 
them  as  the  agents  and  depositaries  of  that  power, 
there  could  be  no  incompatibility  in  such  a system. 
The  people  who  had  deposited  with  a State  govern- 
ment the  sovereign  power  of  their  community,  could 
withdraw  it  at  their  pleasure ; and  as  they  could 
withdraw  the  whole,  they  could  withdraw  a part  of 
it.  If  a part  only  were  withdrawn,  or  rather,  if  the 
supreme  power  in  relation  to  particular  objects  were 
to  be  taken  from  the  State  governments,  and  vested 


Cii.  II.]  OBJECTS  OF  A NATIONAL  GOVERNMENT.  39 

in  another  class  of  agents,  leaving  the  authority  of 
the  former  undiminished  except  as  to  those  partic- 
ular objects,  the  individual  might  owe  a double 
allegiance,  but  there  could  be  no  confusion  of  his 
duties,  provided  the  powers  withdrawn  and  revested 
were  clearly  defined. 

The  advocates  of  a national  government,  besides 
and  beyond  the  intrusting  of  a particular  jurisdic- 
tion to  that  government,  wished  to  make  it  certain 
that  its  legislative  power,  in  each  act  of  legislation, 
should  rest  on  the  direct  authority  of  the  people. 
For  this  purpose  they  desired  to  avoid  all  agency  of 
the  State  governments  in  the  appointment  of  the 
members  of  the  national  legislature.  They  held 
this  to  be  necessary  for  two  reasons.  In  the  first 
place,  they  said  that  in  a national  government  the 
people  must  be  represented ; and  that  in  a repub- 
lican system  the  real  constituent  should  act  directly, 
and  without  any  intermediate  agency,  in  the  appoint- 
ment of  the  representative.  In  the  second  place, 
they  deduced  from  the  objects  of  a national  gov- 
ernment the  necessity  for  excluding  the  agency  of 
the  State  governments  in  the  appointment  of  those 
who  wrere  to  exercise  its  legislative  power.  Those 
objects,  they  contended,  were  not  fully  stated  by 
their  opponents.  The  latter  generally  regarded  the 
objects  of  the  Union  as  confined  to  defence  against 
foreign  danger  and  internal  disorder ; the  power  to 
make  binding  treaties  with  foreign  countries ; the 
regulation  of  commerce,  and  the  power  to  derive 


40 


FOKMATION  OF  THE  CONSTITUTION.  [Book  iy. 


revenues  therefrom.1  The  former  insisted  that  an- 
other great  object  must  be,  to  provide  more  effect- 
ually for  the  security  of  private  rights,  and  the 
steady  dispensation  of  justice.  Mr.  Madison  de- 
clared that  republican  liberty  could  not  long  exist 
under  the  abuses  of  it  which  had  been  practised  in 
some  of  the  States,  where  the  uncontrollable  power 
of  a majority  had  enabled  debtors  to  elude  their 
creditors,  the  holders  of  one  species  of  property  to 
oppress  the  holders  of  another  species,  and  where 
paper  money  had  become  a stupendous  fraud.  These 
evils  had  made  it  manifest  that  the  power  of  the 
State  governments,  even  in  relation  to  some  matters 
of  internal  legislation,  must  be  to  some  extent  re- 
strained ; and  in  order  effectually  to  restrain  it,  the 
national  government  must,  in  the  construction  of  its 
departments,  as  well  as  in  its  powers,  be  derived 
directly  from  the  people.2 

These  views  again  prevailed  as  to  the  first  branch, 
and  Mr.  Pinckney’s  proposition  for  electing  that 
branch  by  the  State  legislatures  was  negatived  by  a 
vote  of  three  States  in  the  affirmative,  and  eight  in 
the  negative.3 

But  as  soon  as  the  impracticability  of  abolishing 
the  State  governments  was  seen  and  admitted,  — 
and  it  was  at  once  both  seen  and  admitted  by  som6 

1 See  Mr.  Sherman’s  remarks,  3 Connecticut,  New  Jersey, 

made  in  committee,  June  6 ; Madi-  South  Carolina,  ay,  3 ; Massachu- 
son,  Elliot,  V.  161.  setts,  New  York,  Pennsylvania, 

2 See  Mr.  Madison’s  views,  as  Delaware,  Man-land,  Virginia, 

stated  in  his  debates,  Elliot,  V.  161.  North  Carolina,  Georgia,  no,  8. 


Cii.  II.] 


FORM  OF  REPRESENTATION. 


41 


of  the  strongest  advocates  for  a national  govern- 
ment, — it  became  apparent  to  a large  part  of  the 
assembly,  that  to  exclude  those  governments  from 
all  agency  in  the  election  of  both  branches  of 
the  national  legislature  would  be  inexpedient.  It 
would  obviously  have  been  theoretically  correct  to 
have  given  the  election  of  both  the  Senate  and  the 
House  to  the  people  of  the  States,  especially  when 
it  was  intended  to  adhere  to  the  principle  of  a pro- 
portionate representation  of  the  people  of  the  States 
in  both  branches.1  But  the  necessity  for  providing 
some  means  by  which  the  States,  as  States,  might 
defend  themselves  against  encroachments  of  the  na- 
tional government,  made  it  apparent  that  they  must 
become,  in  the  election,  a constituent  part  of  the 
system.  No  mode  of  doing  this  presented  itself, 
except  to  give  the  State  legislatures  the  appointment 
of  the  less  numerous  branch  of  the  national  legisla- 
ture, — a provision  which  was  finally  adopted  in  the 
committee  by  the  unanimous  vote  of  the  States.2 

The  results  thus  reached  had  settled  for  the  pres- 
ent the  very  important  fact,  that  the  people  of  the 
States  were  to  be  represented  in  both  branches  of 
the  legislature  ; that  for  the  one  they  were  to  elect 
their  representatives  directly,  and  for  the  other  they 
were  to  be  elected  by  the  legislature  of  the  State. 

But  when  it  had  been  ascertained  by  whom  the 
members  of  the  two  branches  were  to  be  elected, 

1 Mr.  Wilson  was ' in  favor  of  2 Madison,  Elliot,  Y.  170. 
this  plan,  and  Mr.  Madison  seems 

to  have  favored  it. 


VOL.  II. 


6 


42 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


there  remained  to  be  determined  the  decisive  ques- 
tion, which  was  to  mark  still  more  effectively  the 
distinction  between  a purely  national  and  a purely 
federal  government,  namely,  the  rule  of  suffrage,  or 
the  ratio  of  representation  hi  the  national  legisla- 
ture. 

The  rule  of  suffrage  adopted  in  the  first  Conti- 
nental Congress  was,  as  we  have  seen,  the  result  of 
necessity ; for  it  was  impossible  to  ascertain  the 
relative  importance  of  each  Colony ; and,  moreover, 
that  Congress  was  in  fact  an  assembly  of  committees 
of  the  different  Colonies,  called  together  to  deliberate 
in  what  mode  they  could  aid  each  other  in  obtaining 
a redress  of  their  several  grievances  from  Parliament 
and  the  Crown.  But  while,  from  the  necessity  of 
the  case,  they  assigned  to  each  Colony  one  vote  in 
the  Congress,  they  looked  forward  to  the  time  when 
the  relative  wealth  or  population  of  the  Colonies 
must  regulate  their  suffrage  in  any  future  system  of 
continental  legislation.1  The  character  of  the  gov- 
ernment formed  by  the  Articles  of  Confederation 
had  operated  to  postpone  the  arrival  of  this  period; 
because  it  was  in  the  very  nature  of  that  system 
that  each  State  should  have  an  equal  voice  with 
every  other.  This  system  was  the  result  of  the  for- 
mation of  the  State  governments,  each  of  which  had 
become  the  present  depositary  of  the  political  pow- 
ers of  an  independent  people. 

But  if  this  system  were  to  be  changed,  — if  the 


1 Ante , Vol.  I.  Book  I.  ch.  I.  pp.  15-1". 


Ch.  II.] 


RULE  OF  SUFFRAGE. 


43 


people  of  the  States  were  to  be  represented  in  each 
branch  of  the  national  legislature,  — some  ratio  of 
representation  must  be  adopted,  or  the  idea  of  con- 
necting them  as  a nation  with  the  government  that 
was  to  be  instituted  must  be  abandoned.  It  was 
obviously  for  the  interest  of  the  larger  States,  such 
as  Virginia,  Pennsylvania,  and  Massachusetts,  — 
then  the  three  leading  States  in  point  of  popula- 
tion, — to  have  a proportionate  representation  of 
their  whole  inhabitants,  without  reference  to  age, 
sex,  or  condition.  On  the  other  hand,  it  was  for 
the  interest  of  the  smaller  States  to  insist  on  an 
equality  of  votes  in  the  national  legislature,  or  at 
least  on  the  adoption  of  a ratio  that  would  exclude 
some  portions  of  the  population  of  the  great  States. 
Some  of  the  lesser  States  were  exceedingly  strenu- 
ous in  their  efforts  to  accomplish  these  objects,  and 
morer  than  once,  in  the  course  of  the  proceedings, 
declared  their  purpose  to  form  a union  on  no  other 
basis. 

In  this  posture  of  things  the  alternatives  were, 
either  to  form  no  union  at  all,  or  only  to  form  one 
between  the  large  States  willing  to  unite  on  the 
basis  of  proportionate  representation ; or  to  abol- 
ish the  State  governments,  and  throw  the  whole 
into  one  mass ; or  to  leave  the  distinctions  and 
boundaries  between  the  different  States,  and  adopt 
some  equitable  ratio  of  suffrage,  as  between  the  peo- 
ple of  the  several  States,  in  the  national  legislature. 
The  latter  course  was  adopted  in  the  committee,  as 
to  the  first  branch,  by  a vote  of  seven  States  in  the 


44 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


affirmative,  against  three  in  the  negative,  one  being 
divided.1 

The  question  was  then  to  be  determined,  by  what 
ratio  the  representation  of  the  different  States  should 
be  regulated ; and  here  again  any  one  of  several 
expedients  might  be  adopted.  The  basis  of  repre- 
sentation might  be  made  to  consist  of  the  whole 
number  of  voters,  or  those  on  whom  the  States  had 
conferred  the  elective  franchise  ; or  it  might  be  con- 
fined to  the  white  inhabitants,  excluding  all  other 
races ; or  it  might  include  all  the  free  inhabitants  of 
every  race,  excluding  only  the  slaves ; or  it  might 
embrace  the  whole  population  of  each  State.  Some 
examination  of  each  of  these  plans  will  illustrate 
the  difficulties  which  had  to  be  encountered. 

To  have  adopted  the  number  of  legal  voters  of 
the  States  as  the  ratio  of  representation  in  the  na- 
tional legislature  would  have  been  to  adopt  a sys- 
tem in  which  there  were  great  existing  inequalities. 
The  elective  franchise  had  been  conferred  in  the 
different  States  upon  very  different  principles ; it 
was  very  broad  in  some  of  the  States,  and  much 
narrower  in  others,  according  to  their  peculiar  pol- 
icy and  manners.  These  inequalities  could  scarcely 
have  been  removed ; for  the  right  of  suffrage  in 
some  of  the  States  was  more  or  less  connected  with 
their  systems  of  descent  and  distribution  of  property, 
and  those  systems  could  not  readily  be  changed,  so 

1 Massachusetts,  Connecticut,  ay,  7 ; New  York,  New  Jersey, 
Pennsylvania,  Virginia,  North  Car-  Delaware,  no,  3 ; Maryland,  di- 
olina,  South  Carolina,  Georgia,  vided. 


Ch.  II.] 


BASIS  OF  REPRESENTATION. 


45 


as  to  adapt  the  condition  of  society  to  the  new  in- 
terest of  representation  and  influence  in  the  general 
government.  This  plan  was,  therefore,  out  of  the 
question. 

It  was  nearly  as  impracticable,  also,  to  confine  the 
basis  of  representation  to  the  white  inhabitants  of 
the  States.  Some  of  the  States  — such  as  Massa- 
chusetts, Connecticut,  Rhode  Island,  New  York,  and 
Pennsylvania,  in  which  slavery  was  already,  or  was 
ultimately  to  become,  extinct,  and  Maryland,  North 
Carolina,  and  Virginia,  where  slavery  was  likely  to 
remain  — had  large  numbers  of  free  blacks.  These 
inhabitants,  who  were  regarded  as  citizens  in  some 
of  the  States,  but  not  in  others,  were  in  all  a part  of 
their  populations,  contributing  to  swell  the  aggre- 
gate of  the  numbers  and  wealth  of  the  State,  and 
thus  to  raise  it  in  the  scale  of  relative  rank.  Their 
personal  consequence,  or  social  rank,  was  a thing 
too  remote  for  special  inquiry.  A State  that  con- 
tained five  or  ten  thousand  of  these  inhabitants 
might  well  say,  that,  although  of  a distinct  race,  they 
formed  an  aggregate  portion  of  its  free  population, 
too  large  to  be  omitted  without  opening  the  door  to 
inquiries  into  the  condition  and  importance  of  other 
classes  of  its  free  inhabitants.  This  was  the  situa- 
tion of  all  the  Northern  States  except  New  Hamp- 
shire, as  well  as  of  all  the  Middle  and  Southern 
States  ; and  it  was  especially  true  of  Virginia,  which 
had  nearly  twice  as  many  free  colored  persons  as 
any  other  State  in  the  Union. 

It  was  equally  impracticable  to  form  a national 


46 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


government  in  which,  the  basis  of  representation 
should  be  confined  to  the  free  inhabitants  of  the 
States.  The  five  States  of  Maryland,  Virginia, 
North  Carolina,  South  Carolina,  and  Georgia,  in- 
cluding their  slaves,  were  found  by  the  first  census, 
taken  three  years  after  the  formation  of  the  Consti- 
tution, to  contain  a fraction  less  than  one  half  of  the 
whole  population  of  the  Union.1  In  three  of  those 
States  the  slaves  were  a little  less  than  half,  and  in 
two  of  them  they  were  more  than  half,  as  numerous 
as  the  whites.2  There  was  no  good  reason,  there- 
fore, — except  the  theoretical  one  that  a slave  can 
have  no  actual  voice  in  government,  and  consequent- 
ly does  not  need  to  be  represented,  — why  a class  of 
States  containing  nearly  half  of  the  whole  population 
of  the  confederacy  should  consent  to  exclude  such 
large  masses  of  their  populations  from  the  basis  of 
representation,  and  thereby  give  to  the  free  inhabit- 
ants of  each  of  the  other  eight  States  a relatively 
larger  share  of  legislative  power  than  would  fall 
to  the  free  inhabitants  of  the  States  thus  situated. 
The  objection  arising  from  the  political  and  social 
condition  of  the  slaves  would  have  had  great  weight, 
and  indeed  ought  to  have  been  decisive  of  the  ques- 
tion, if  the  object  had  been  to  efface  the  boundaries 
of  the  States,  and  to  form  a purely  consolidated  re- 
public. But  this  purpose,  if  ever  entertained  at  all, 

1 They  contained  1,793,407  in-  2 See  the  census  of  1790,  post, 
habitants ; the  other  eight  States  p.  55. 
had  1,845,595  when  the  federal 

census  of  1790  was  taken. 


Cu.  II.] 


BASIS  OF  REPRESENTATION. 


47 


could  not  be  followed  by  tbe  framers  of  the  Consti- 
tution. They  found  it  indispensable  to  leave  the 
States  still  in  possession  of  their  distinct  political 
organizations,  and  of  all  the  sovereignty  not  neces- 
sary to  be  conferred  on  the  central  power,  which 
they  were  endeavoring  to  create  by  bringing  the 
free  people  of  these  several  communities  into  some 
national  relations  with  each  other.  It  became  ne- 
cessary, therefore,  to  regard  the  peculiar  social  con- 
dition of  each  of  the  States,  and  to  construct  a 
system  of  representation  that  would  place  the  free 
inhabitants  of  each  distinct  State  upon  as  near  a 
footing  of  political  equality  with  the  free  inhabitants 
of  the  other  States  as  might,  under  such  circum- 
stances, be  practicable.  This  could  only  be  done 
by  treating  the  slaves  as  an  integral  part  of  the 
population  of  the  States  in  which  they  were  found, 
and  by  assuming  the  population  of  the  States  as  the 
true  basis  of  their  relative  representation. 

It  was  upon  this  idea  of  treating  the  slaves  as 
inhabitants,  and  not  as  chattels,  or  property,  that 
the  original  decision  was  made  in  the  committee  of 
the  whole,  by  which  it  was  at  first  determined  to 
include  them.1  Having  decided  that  there  ought  to 
be  an  equitable  ratio  of  representation,  the  commit- 
•»  / 

1 The  population  of  the  States  for  in  the  text,  as  a part  of  the 
■was  adopted  in  the  committee  of  aggregate  population ; and  it  was 
the  whole,  instead  of  their  quo-  not  until  a subsequent  stage  of  the 
tas  of  contribution,  which,  in  one  proceedings  that  this  result  was 
or  another  form,  was  the  alterna-  defended  on  the  ground  of  their 
tive  proposition.  The  slaves  were  forming  part  of  the  aggregate 
included,  in  a proportion  accounted  wealth  of  the  State. 


48 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tee  went  on  to  declare  that  the  basis  of  representa- 
tion ought  to  include  the  whole  number  of  white 
and  other  free  citizens  and  inhabitants,  of  every  age, 
sex,  and  condition,  including  those  bound  to  servi- 
tude for  a term  of  years ; and  they  then  added  to 
the  population  thus  described  three  fifths  of  all  other 
persons  not  comprehended  in  that  description,  ex- 
cept Indians  not  paying  taxes.  The  proportion  of 
three  fifths  was  borrowed  from  a rule  which  had  ob- 
tained the  sanction  of  nine  States  in  Congress,  in  the 
year  1783,  when  it  was  proposed  to  change  the  basis 
of  contribution  by  the  States  to  the  expenses  of  the 
Union  from  property  to  population.1  At  that  time, 
the  slaveholding  States  had  consented  that  three 
fifths  of  their  slaves  should  be  counted  in  the  census 
which  was  to  fix  the  amount  of  their  contributions ; 
and  they  now  asked  that,  in  the  apportionment 
of  representatives,  these  persons  might  still  be  re- 
garded as  inhabitants  of  the  State,  in  the  same  ratio. 
The  rule  was  adopted  in  the  committee,  with  the 
dissent  of  only  two  States,  New  Jersey  and  Dela- 
ware ; but  on  the  original  question  of  substituting 
an  equitable  ratio  of  representation  for  the  equality 
of  suffrage  that  prevailed  under  the  Confederation, 
New  York  united  with  New  Jersey  and  Delaware 
in  the  opposition,  and  the  vote  of  Maryland  was 
divided. 

The  next  step  was  to  settle  the  rule  of  suffrage  in 
the  Senate  ; and  although  it  was  earnestly  contended 

1 Ante , Vol.  I.  Book  II.  ch.  III.  of  the  proportion  of  three  fifths  is 
p.  213,  note  2,  where  the  origin  explained. 


Ch.  II] 


SLAVES  TO  BE  INCLUDED. 


49 


that  the  smaller  States  would  never  agree  to  any 
other  principle  than  an  equality  of  votes  in  that 
body,1  it  was  determined  in  the  committee,  by  a vote 
of  six  States  against  five,  that  the  ratio  of  represen- 
tation should  be  the  same  as  in  the  first  branch.2 

Thus  it  appears  that  originally  a majority  of  the 
States  were  in  favor  of  a numerical  representation  in 
both  branches.  The  three  States  of  Virginia,  Penn- 
sylvania, and  Massachusetts,  the  leading  States  in 
population,  and  with  them  North  Carolina,  South 
Carolina,  and  Georgia,  found  it  at  present  for  their 
interest  to  adopt  this  basis  for  both  houses  of  the 
national  legislature.  It  was  a consequence  of  the 
principle  of  numerical  representation,  that  the  slaves 
should  he  included ; and  it  does  not  appear  that  at 
this  time  any  delegate  from  a Northern  State  inter- 
posed any  objection,  except  Mr.  Gerry  of  Massa- 
chusetts, who  regarded  the  slaves  as  “ property,” 
and  said  that  the  cattle  and  horses  of  the  North 
might  as  well  be  included.  But  the  State  which  he 
represented  was  at  this  time  pressing  for  the  rights 
of  population,  and  for  a system  in  which  population 
should  have  its  due  influence  ; and  her  vote,  as  well 
as  that  of  Pennsylvania,  was  accordingly  given  for  the 
principle  which  involved  an  admission  of  the  slaves 
into  the  basis  of  representation,  and  for  the  propor- 
tion which  the  slave  States  were  willing  to  take. 

1 By  Mr.  Sherman  and  Mr.  Carolina,  Georgia,  ay,  6 ; Connect- 

Ellsworth.  icut,  New  York,  New  Jersey,  Del- 

2 Massachusetts,  Pennsylvania,  aware,  Maryland,  no,  5.  Elliot,  V. 
Virginia,  North  Carolina,  South  182. 

7 


VOL.  II. 


50 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


These  transactions  in  the  committee  of  the  whole 
are  quite  important,  because  they  show  that  the 
original  line  of  division  between  the  States,  on  the 
subject  of  representation,  was  drawn  between  the 
States  having  the  preponderance  of  population  and 
the  States  that  were  the  smallest  in  point  of  num-, 
bers.  When,  and  under  what  circumstances,  this 
line  of  division  changed,  what  combinations  a nearer 
view  of  all  the  consequences  of  numerical  represen- 
tation may  have  brought  about,  and  how  the  con- 
flicting interests  were  finally  reconciled,  will  be  seen 
hereafter.  What  we  are  here  to  record  is  the  dec- 
laration of  the  important  principle,  that  the  legis- 
lative branch  of  the  government  was  to  be  one  in 
which  the  free  people  of  the  States  were  to  be 
represented,  and  to  be  represented  according  to  the 
numbers  of  the  inhabitants  which  their  respective 
States  contained,  counting  those  held  in  servitude  in 
a certain  ratio  only. 

The  general  principles  on  which  the  powers  of 
the  national  legislature  were  to  be  regulated,  were 
declared  with  a great  degree  of  unanimity.  That  it 
ought  to  be  invested  with  all  the  legislative  powers 
belonging  to  the  Congress  of  the  Confederation  was 
conceded  by  all.  This  was  followed  by  the  nearly 
unanimous  declaration  of  a principle,  which  was 
intended  as  a general  description  of  a class  of  pow- 
ers that  would  require  subsequent  enumeration, 
namely,  that  the  legislative  power  ought  to  embrace 
all  cases  to  which  the  State  legislatures  were  incom- 
petent, or  in  which  the  harmony  of  the  United 


Ch.  II.] 


CONTROL  OF  STATE  LEGISLATION. 


51 


States  would  be  interrupted  by  the  exercise  of  State 
legislation.  But  the  committee  also  went  much 
farther,  and  without  discussion  or  dissent  declared 
that  there  ought  also  to  be  a power  to  negative  all 
laws  passed  by  the  several  States  contravening,  in 
the  opinion  of  the  national  legislature,  the  Articles 
of  Union,  or  any  treaties  made  under  the  authority 
of  the  Union.1 

The  somewhat  crude  idea  of  making  a negative 
on  State  legislation  a legislative  power  of  the  na- 
tional government,  shows  that  the  admirable  dis- 
covery had  not  yet  been  made  of  exercising  such  a 
control  through  the  judicial  department  Without 
such  a control  lodged  somewhere,  the  national  pre- 
rogatives could  not  be  defended,  however  extensive 
they  might  be  in  theory.  There  had  been,  as  Mr. 
Madison  well  remarked,  a constant  tendency  in  the 
States  to  encroach  on  the  federal  authority,  to  violate 
national  treaties,  to  infringe  the  rights  and  inter- 
ests of  each  other,  and  to  oppress  the  weaker  party 
within  their  respective  jurisdictions.  The  expedient 
that  seemed  at  first  to  be  the  proper  remedy,  and, 
as  was  then  supposed,  the  only  one  that  could  be 
employed  as  a substitute  for  force,  was  to  give  the 
general  government  a power  similar  to  that  which 
had  been  exercised  over  the  legislation  of  the  Col- 
onies by  the  crown  of  England,  before  the  Revolu- 
tion ; and  there  were  some  important  members  of 
the  Convention  who  at  this  time  thought  that  this 


1 Madison,  Elliot,  V.  139. 


52 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


power  ought  to  be  universal.1  They  considered  it 
impracticable  to  draw  a line  between  the  cases  prop- 
er and  improper  for  the  exercise  of  such  a negative, 
and  they  argued  from  the  correctness  of  the  principle 
of  such  a power,  that  it  ought  to  embrace  all  cases. 

But  here  the  complex  nature  of  the  government 
which  they  were  obliged  to  establish  made  it  neces- 
sary to  depart  from  the  theoretical  correctness  of  a 
general  principle.  The  sovereignty  of  the  States 
would  be  entirely  inconsistent  with  a power  in  the 
general  government  to  control  their  whole  legisla- 
tion. As  the  direct  authority  of  the  national  leg- 
islature was  to  extend  only  to  certain  objects  of 
national  concern,  or  to  such  as  the  States  were  in- 
competent to  provide  for,  all  the  political  powers  of 
the  States,  the  surrender  of  which  was  not  involved 
in  the  grant  of  powers  to  the  national  head,  must 
remain  ; and  if  a general  superintendence  of  State 
legislation  were  added  to  the  specific  powers  to  be 
conferred  on  the  central  authority,  there  would  be 
in  reality  but  one  supreme  power  in  all  cases  in 
which  the  general  government  might  see  fit  to  ex- 
ercise its  prerogative.  The  just  and  proper  sphere 
of  the  national  government  must  be  the  limit  of  its 
power  over  the  legislation  of  the  States.  In  that 
sphere  it  must  be  supreme,  as  the  power  of  each 
State  within  its  own  sphere  must  also  be  supreme. 
Neither  of  them  should  encroach  upon  the  prerog- 

1 Mr.  Madison,  Mr.  Wilson,  Mr.  Mr.  Sherman,  Mr.  Bedford,  and 
C.  Pinckney,  Mr.  Dickinson.  On  Mr.  Butler  strenuously  opposed 
the  other  hand,  Mr.  Williamson,  this  plan. 


Ch.  n.j 


CONTROL  OF  STATE  LEGISLATION. 


53 


atives  of  the  other ; and  while  it  was  undoubtedly 
necessary  to  arm  the  national  government  with  some 
power  to  defend  itself  against  such  encroachments 
on  the  part  of  the  States,  there  could  be  no  real 
necessity  for  making  this  power  extend  beyond  the 
exigencies  of  the  case.  Those  exigencies  would  be 
determined  by  the  objects  that  might  be  committed 
to  the  legislation  of  the  central  authority ; and  if  a 
mode  could  be  devised,  by  which  the  States  could 
be  restrained  from  interfering  with  or  interrupting 
the  just  exercise  of  that  authority,  all  that  was  re- 
quired would  be  accomplished.1 

But  to  do  this  by  means  of  a negative  that  was  to 
be  classed  among  the  legislative  powers  of  the  new 
government,  was  to  commit  the  subject  of  a sup- 
posed conflict  between  the  rights  and  powers  of  the 
State  and  the  national  governments  to  an  unfit  arbi- 
tration. Such  a question  is  of  a judicial  nature,  and 
belongs  properly  to  a department  that  has  no  direct 
interest  in  maintaining  or  enlarging  the  prerogatives 
of  the  government  whose  powers  are  involved  in  it. 

But  the  framers  of  the  Constitution  had  come 
fresh  from  the  inconveniences  and  injustice  that  had 
resulted  from  the  unrestrained  legislative  powers  of 
the  States.  Some  of  them  believed  it,  therefore,  to 
be  necessary  to  make  the  authority  of  the  United 
States  paramount  over  the  authority  of  each  sepa- 
rate State  ; and  a negative  upon  State  legislation,  to 

1 Accordingly,  a proposition  to  votes  of  three  States  only,  viz. 
extend  the  negative  on  State  leg-  Massachusetts,  Pennsylvania,  and 
islation  to  all  cases  received  the  Virginia. 


54 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


be  exercised  by  the  legislative  branch  of  the  national 
government,  seemed  to  be  the  readiest  Avay  of  ac- 
complishing the  object.  Some  of  the  suggestions  of 
the  mode  in  which  this  power  was  to  operate  strike 
us,  at  the  present  day,  as  singularly  strange.  No 
less  a person  than  Mr.  Madison,  in  answer  to  the 
objections  arising  from  the  practical  difficulties  in 
subjecting  all  the  legislation  of  all  the  States  to  the 
revision  of  a central  power,  thought  at  this  time 
that  something  in  the  nature  of  a commission  might 
be  issued  into  each  State,  in  order  to  give  a tempo- 
rary assent  to  laws  of  urgent  necessity.  He  sug- 
gested also  that  the  negative  might  be  lodged  in  the 
Senate,  in  order  to  dispense  with  constant  sessions 
of  the  more  numerous  branch. 

But  the  radical  objection  to  any  plan  of  a nega- 
tive on  State  legislation,  as  a legislative  power  of  the 
general  government,  was,  that  it  would  not  in  fact 
dispense  with  the  use  of  force  against  a State  in  the 
last  resort.  If,  after  the  exercise  of  the  power,  the 
State  whose  obnoxious  law  had  been  prohibited 
should  see  fit  to  persist  in  its  course,  force  must  be 
resorted  to  as  the  only  ultimate  remedy.  How  dif- 
ferent, how  wise,  was  the  expedient  subsequently 
devised,  when  the  appropriate  office  of  the  judicial 
power  was  discerned,  — a power  that  waits  calmly 
until  the  clashing  authorities  of  the  State  and  the 
nation  have  led  to  a conflict  of  right  or  duty  in  some 
individual  case,  and  then  peacefully  adjudicates,  in 
a case  of  private  interest,  the  great  question,  with 
which  of  the  two  governments  resides  the  power  of 


Ch.  II.] 


CONTROL  OF  STATE  LEGISLATION. 


55 


prescribing  the  paramount  rule  of  conduct  for  the 
citizen  ! Disobedience  on  the  part  of  the  State  may, 
it  is  true,  still  follow  after  such  an  adjudication,  and 
against  an  open  array  of  force  on  the  one  side  noth- 
ing but  force  remains  to  be  employed  on  the  other. 
But  the  great  preventive  of  this  dread  necessity  is 
found  in  the  fact,  that  there  has  been  an  adjudica- 
tion by  a tribunal  that  commands  the  confidence  of 
all,  and  in  the  moral  influence  of  judicial  determina- 
tions over  a people  accustomed  to  submit  not  only 
their  interests,  but  their  feelings  even,  to  the  arbitra- 
ment of  juridical  discussion  and  decision. 


TABLE 

EXHIBITING  THE  POPULATIONS  OF  THE  THIRTEEN  STATES,  AC- 
CORDING TO  THE  CENSUS  OF  1790. 


N.  B.  — In  this  abstract  Maine  is  not  included  in  Massachusetts,  nor 
Kentucky  and  Tennessee  in  the  States  from  which  they  were  severed. 


Whites. 

Free  Colored. 

Slaves. 

Total. 

New  Hampshire, 

141,111 

630 

158 

141,899 

Massachusetts, 

373,254 

5,463 

378,717  I 

Rhode  Island, 

04,689 

3,469 

952 

69,110 

Connecticut, 

232,581 

2,801 

2,759 

238,141 

New  York, 

314,142 

4,654 

21,324 

340,120 

New  Jersey, 

109,954 

2,762 

11,423 

184,139 

Pennsylvania, 

424,099 

6,537 

3,737 

434,373 

Delaware, 

46,310 

3,899 

8,887 

59,096 

Maryland, 

208,649 

8,043 

103,036 

319,728 

Virginia, 

North  Carolina, 

442,115 

12,765 

293,427 

748,307 

288,204 

4,975 

100,572 

393,751 

South  Carolina, 

140,178 

1,801 

107,094 

249.073 

Georgia, 

52,886 

398 

29,264 

82,548 

Aggregate, 

2,898,172 

58,197 

682,633 

3,639,002 

Total  population  of  the  eight  States  in  1790,  in  which  slavery  had  been 
or  has  since  been  abolished,  1,845,595. 

Total  population  of  the  five  States  in  1790,  in  which  slavery  existed, 
and  still  exists,  1,793,407. 


CHAPTER  III. 

CONSTRUCTION  OF  THE  EXECUTIVE  AXD  THE  JUDICIARY. 


The  construction  of  a national  executive,  although 
not  surrounded  by  so  many  inherent  practical  diffi- 
culties as  the  formation  of  the  legislative  depart- 
ment, was  likely  to  give  rise  to  a great  many  oppo- 
site theories.  The  questions,  of  how  many  persons 
the  executive  ought  to  consist,  in  what  mode  the 
appointment  should  be  made,  and  what  were  to  be 
its  relations  to  the  legislative  power,  were  attended 
with  great  diversities  of  opinion. 

The  question  whether  the  executive  should  con- 
sist of  one,  or  of  more  than  one  person,  was  likely 
to  be  influenced  by  the  nature  of  the  powers  to  be 
conferred  upon  the  office.  Foreseeing  that  it  must 
necessarily  be  an  office  of  great  power,  some  of  the 
members  of  the  Convention  thought  that  a single 
executive  would  approach  too  nearly  to  the  model 
of  the  British  government.  These  persons  consid- 
ered that  the  great  requisites  for  an  executive  de- 
partment — vigor,  despatch,  and  responsibility  — 
could  be  found  in  three  persons  as  well  as  in  one. 
Those,  on  the  other  hand,  who  favored  the  plan  of  a 
single  magistrate,  maintained  that  the  prerogatives 


Ch.  III.] 


EXECUTIVE  DEPARTMENT. 


57 


of  the  British  monarchy  would  not  necessarily  fur- 
nish the  model  for  the  executive  powers ; and  that 
unity  in  the  executive  would  be  the  best  safeguard 
against  tyranny. 

But  this  point  connected  itself  with  the  question, 
whether  the  executive  should  be  surrounded  by  a 
council,  and  the  latter  proposition  again  involved 
the  consideration  of  the  precise  relation  of  the  ex- 
ecutive to  the  legislative  power.  That  a negative  of 
some  kind  upon  the  acts  of  the  legislature  was  es- 
sential to  the  independence  of  the  executive,  was  a 
truth  in  political  science  not  likely  to  escape  the 
attention  of  many  of  the  members  of  the  Conven- 
tion. Whether  it  should  be  a qualified  or  an  ab- 
solute negative  was  the  real,  and  almost  the  sole 
question ; for  although  there  were  some  who  held 
the  opinion  that  no  such  power  ought  to  be  given, 
it  was  evident  from  the  first  that  its  necessity  was 
well  understood  by  the  larger  part  of  the  assembly. 
In  the  first  discussion  of  this  subject,  the  negative 
was  generally  regarded  as  a means  of  defence  against 
encroachments  of  the  legislature  on  the  rights  and 
powers  of  the  other  departments.  It  was  supposed 
that,  although  the  boundaries  of  the  legislative 
authority  might  be  marked  out  in  the  Constitution, 
the  executive  would  need  some  check  against  uncon- 
stitutional interference  with  its  own  prerogatives  ; 
and  that,  as  the  judicial  department  might  be  ex- 
posed to  the  same  dangers,  the  power  of  resisting 
these  also  could  be  best  exercised  by  the  executive. 

But  an  absolute  negative  for  any  purpose  was  fa- 

8 


VOL.  II. 


58 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


vored  by  only  a very  few  of  the  members,  and  the 
proposition  first  adopted  was  to  give  the  executive 
alone  a revisionary  check  upon  legislation,  which 
should  not  be  absolute  if  it  were  afterwards  over- 
ruled by  two  thirds  of  each  branch  of  the  legisla- 
ture.1 

But  inasmuch  as  this  provision  would  leave  the 
precise  purposes  of  the  check  undetermined,  and  in 
order,  as  it  would  seem,  to  subject  the  whole  of  the 
legislative  acts  to  revision  and  control  by  the  execu- 
tive, some  of  the  members  desired  that  the  judiciary, 
or  a convenient  number  of  the  judges,  might  be 
added  to  the  executive  as  a council  of  revision. 
Among  these  persons  were  Mr.  Madison  and  Mr. 
Wilson.  The  former  expressed  a very  decided  opin- 
ion, that,  whether  the  object  of  a revisionary  power 
was  to  restrain  the  encroachments  of  the  legislature 
on  the  other  departments,  or  on  the  rights  of  the 
people  at  large,  or  to  prevent  the  passage  of  laws 
unwise  in  principle  or  incorrect  in  form,  there  would 
be  great  utility  in  annexing  the  wisdom  and  weight 
of  the  judiciary  to  the  executive.  But  this  proposi- 
tion was  rejected  by  a large  majority  of  the  States, 
and  the  power  was  left  by  the  committee  as  it  had 
been  settled  by  their  former  decision.  These  pro- 
ceedings, however,  do  not  furnish  any  decisive  evi- 
dence of  the  nature  and  purpose  of  the  revisionary 
check. 

But  before  this  feature  of  the  Constitution  had 

1 Adopted  by  the  votes  of  eight  and  Maryland  voting  in  the  neg- 
States  against  two, — Connecticut  ative. 


Ch.  III-l 


CHOICE  OF  THE  EXECUTIVE. 


59 


been  settled  by  the  committee,  they  had  determined 
on  a mode  in  which  the  executive  should  be  ap- 
pointed. It  is  singular  that  the  idea  of  an  election 
of  the  executive  by  the  people,  either  mediately  or 
immediately,  found  so  little  favor  at  first,  that  on  its 
first  introduction  it  received  the  votes  of  but  two 
States.  Since  the  executive  was  to  be  the  agent  of 
the  legislative  will,  it  was  argued  by  some  members 
that  it  ought  to  be  wholly  dependent,  and  ought 
therefore  to  be  chosen  by  the  legislature.  The  ex- 
perience of  New  York  and  of  Massachusetts,  on  the 
other  hand,  — where  the  election  of  the  first  magis- 
trate by  the  people  had  been  successfully  practised,  — 
and  the  danger  that  the  legislature  and  the  candi- 
dates might  play  into  each  other’s  hands,  and  thus 
give  rise  to  constant  intrigues  for  the  office,  were 
the  arguments  employed  by  others.  Upon  the  in- 
troduction of  a proposition  that  the  States  be  divid- 
ed into  districts,  for  the  election  by  the  people  of 
electors  of  the  executive,  two  States  only  recorded 
their  votes  in  its  favor,  and  eight  States  voted  against 
it.1  By  the  vote  of  eight  States  it  was  then  deter- 
mined that  the  executive  should  be  elected  by  the 
national  legislature  for  the  term  of  seven  years ; 2 
and  subsequently  it  was  determined  that  the  execu- 
tive should  be  ineligible  to  a second  term  of  office, 
and  should  be  removable  on  impeachment  and  con- 
viction of  malpractice  or  neglect  of  duty.  A single 

1 Pennsylvania,  Maryland,  ay,  North  Carolina,  South  Carolina, 
2 ; Massachusetts,  Connecticut,  Georgia,  no,  8. 

New  York,  Delaware,  Virginia,  2 Pennsylvania  and  Maryland,  no. 


60 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


executive  was  agreed  to  by  a vote  of  seven  States 
against  three.1  After  the  mode  in  which  the  nega- 
tive was  to  be  exercised  had  been  settled,  an  attempt 
was  made  to  change  the  appointment,  and  vest  it  in 
the  executives  of  the  States.  But  this  proposal  Avas 
decisively  rejected.2 

The  judiciary  was  the  next  department  of  the 
proposed  plan  of  government  that  remained  to  be 
provided.  Like  the  executive,  it  was  a branch  of 
sovereign  power  unknown  to  the  Confederation. 
The  most  palpable  defect  of  that  government,  as  I 
have  more  than  once  had  occasion  to  observe,  was 
the  entire  want  of  sanction  to  its  laws.  It  had  no 
judicial  system  of  its  own  for  decree  and  execution 
against  individuals.  All  its  legislation,  both  in  na- 
ture and  form,  prescribed  duties  to  States.  The 
observance  of  these  duties  could  only  be  enforced 
against  the  parties  on  whom  they  rested,  and  this 
could  be  done  only  by  military  power.  But  it  Avas 
the  peculiar  and  anomalous  situation  of  the  Ameri- 
can Confederacy,  that  the  poAver  to  employ  force 
against  its  delinquent  members  had  not  been  ex- 
pressly delegated  to  it  by  the  Articles  of  Union ; 
and  that  it  could  not  be  implied  from  the  general 
purposes  and  provisions  of  that  instrument,  Avithout 
a seeming  infraction  of  the  article  by  Avhich  the 
States  had  reserved  to  themseUes  eArery  poAver, 
jurisdiction,  and  right  not  “ expressly  ” delegated 
to  the  United  States.  If  this  objection  Avas  Avell 

1 New  York,  Delaware,  and  2 Nine  States  voted  against  it, 
Maryland,  no.  and  one ‘(Delaware)  was  divided. 


Ch.  HI.] 


JUDICIAL  DEPARTMENT. 


61 


founded,  — and  it  was  universally  held  to  be  so,  — 
we  may  well  concur  in  the  remark  of  The  Feder- 
alist, that  “ the  United  States  presented  the  extraor- 
dinary spectacle  of  a government  destitute  even  of 
the  shadow  of  constitutional  power  to  enforce  the 
execution  of  its  own  laws.”  1 

The  Confederation,  too,  had  found  it  to  be  entire- 
ly impracticable  to  rely  on  the  tribunals  of  the 
States  for  the  execution  of  its  laws.  Such  a re- 
liance in  a confederated  government  presupposes 
that  the  party  guilty  of  an  infraction  of  the  laws  or 
ordinances  of  the  confederacy  will  try,  condemn, 
and  punish  itself.  The  whole  history  of  our  Con- 
federation evinces  the  futility  of  laws  requiring  the 
obedience  of  States,  and  proceeding  upon  the  expec- 
tation that  they  will  enforce  that  obedience  upon 
themselves. 

The  necessity  for  a judicial  department  in  the 
general  government  was,  therefore,  one  of  the  most 
prominent  of  those  “ exigencies  of  the  Union,”  for 
which  it  was  the  object  of  the  present  undertaking 
to  provide.  The  place  which  that  department  was 
to  occupy  in  a national  system  could  be  clearly  de- 
duced from  the  office  of  the  judiciary  in  all  systems 
of  constitutional  government.  That  office  is  to  ap- 
ply to  the  subjects  of  the  government  the  penalties 
inflicted  by  the  legislative  power  for  disobedience  of 
the  laws.  Disobedience  of  the  lawful  commands  of 
a government  may  be  punished  or  prevented  in  two 


1 The  Federalist,  No.  21. 


62 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


modes.  It  may  be  done  by  the  application  of  mili- 
tary power,  without  adjudication  ; or  it  may  be  done 
through  the  agency  of  a tribunal,  which  adjudicates, 
ascertains  the  guilty  parties,  and  applies  to  them  the 
coercion  of  the  civil  power.  This  last  is  the  pecu- 
liar function  of  a judiciary ; and  in  order  that  it 
may  be  discharged  effectually,  the  judiciary  that  is 
to  perform  this  office  must  be  a part  of  the  govern- 
ment whose  laws  it  is  to  enforce.  It  is  essential  to 
the  supremacy  of  a government,  that  it  should  adju- 
dicate on  its  own  powers,  and  enforce  its  own  laivs  ; 
for  if  it  devolves  this  prerogative  on  another  and 
subordinate  authority,  the  final  sanction  of  its  laws 
can  only  be  by  a resort  to  military  power  directed 
against  those  who  have  refused  to  obey  its  lawful 
commands. 

One  of  the  leading  objects  in  forming  the  Consti- 
tution was  to  obtain  for  the  United  States  the  means 
of  coercion,  without  a resort  to  force  against  the 
people  of  the  States  collectively.  Mr.  Madison,  at 
a very  early  period  in  the  deliberations  of  the  Con-r 
vention,  declared  that  the  use  of  force  against  a 
State  would  be  more  like  a declaration  of  war  than 
an  infliction  of  punishment,  and  would  probably  be 
considered  by  the  party  attacked  as  a dissolution  of 
all  previous  compacts  by  which  it  might  be  bound.1 
At  his  suggestion,  a clause  in  Governor  Randolph's 
plan  authorizing  the  use  of  force  against  a delin- 
quent member  of  the  confederacy  was  laid  aside,  in 


1 Madison,  Elliot,  Y.  p.  140. 


Ch.  III.]  PURPOSE  OP  A JUDICIARY.  63 

order  that  a system  might  be  framed  which  would 
render  it  unnecessary.  This  could  be  done  only  by 
making  the  authority  of  the  government  supreme 
in  relation  to  the  rights  and  powers  that  might  be 
committed  to  it ; and  it  could  be  made  so  only  by 
applying  its  legislation  to  individuals  through  the 
intervention  of  a judiciary.  A confederacy  whose 
legislative  power  operates  only  upon  States,  or  upon 
masses  of  people  in  a collective  capacity,  can  be  su- 
preme only  so  far  as  it  can  employ  superior  force ; 
and  when  the  issue  that  is  to  determine  the  question 
of  supremacy  is  once  made  up  in  that  form,  there  is 
an  actual  civil  war. 

The  introduction,  therefore,  of  a judicial  depart- 
ment into  the  new  plan  of  government,  of  itself 
evinces  an  intention  to  clothe  that  government  with 
powers  that  could  be  executed  peacefully,  and  with- 
out the  necessity  of  putting  down  the  organized 
opposition  of  subordinate  communities.  By  their 
resort  to  this  great  instrumentality,  we  may  per- 
ceive how  much,  in  this  particular,  the  framers  of 
the  Constitution  were  aided  by  the  spirit  and  forms 
of  the  institutions  which  the  people  of  these  States 
had  already  framed  for  their  separate  governments. 
The  common  law,  which  the  founders  of  all  these 
States  had  brought  with  them  to  this  country,  had 
accustomed  them  to  regard  the  judiciary  as  clothed 
with  functions  in  w7hich  two  important  objects  were 
embraced.  By  the  known  course  of  that  jurispru- 
dence the  judiciary  is,  in  the  first  place,  the  depart- 
ment which  declares  the  construction  of  the  laws ; 


64 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and,  in  the  second  place,  when  that  department  has 
announced  the  construction  of  a law,  it  is  not  only 
the  particular  case  that  is  settled,  but  the  rule  is 
promulgated  that  is  to  determine  all  future  cases  of 
the  same  kind  arising  under  the  same  law.  Thus 
the  judiciary,  in  governments  whose  adjudications 
proceed  upon  the  course  of  the  common  law,  be- 
comes not  merely  the  arbitrator  in  a particular  con- 
troversy, but  the  department  through  which  the 
government  interprets  the  rule  of  action  prescribed 
by  the  legislature,  and  by  which  all  its  citizens  are 
to  be  guided.  This  office  of  the  judicial  depart- 
ment had  long  been  known  in  all  the  States  of  the 
Union  at  the  time  of  the  formation  of  the  national 
Constitution. 

By  the  introduction  of  this  department  into  their 
plan  of  government,  the  framers  of  the  Constitution 
obviously  intended  that  it  should  perform  the  same 
office  in  their  national  system  which  the  correspond- 
ing department  had  always  fulfilled  in  the  States. 
No  other  function  of  a judiciary  was  known  to  the 
people  of  the  United  States,  and  this  function  was 
both  known  and  deemed  essential  to  a well-regu- 
lated liberty.  It  was  known  that  the  judicial  de- 
partment of  a government  is  that  branch  by  which 
the  meaning  of  its  laws  is  ascertained,  and  applied 
to  the  conduct  of  individuals.  To  effect  this,  it  was 
introduced  into  the  system  whose  gradual  formation 
and  development  we  are  now  examining. 

The  committee  not  only  declared  that  this  depart- 
ment, like  the  legislative  and  the  executive,  was  to 


Ch.  III.] 


PURPOSE  OF  A JUDICIARY. 


65 


be  “ supreme,”  but  they  proceeded  to  make  it  so. 
One  of  the  first  questions  that  arose  concerning  the 
construction  of  the  judiciary  was,  whether  it  should 
consist  solely  of  one  central  tribunal,  to  which  ap- 
peals might  be  carried  from  the  State  courts,  or 
should  also  embrace  inferior  tribunals  to  be  estab- 
lished within  the  several  States.  The  latter  plan 
was  resisted  as  an  innovation,  which,  it  was  said,  the 
States  would  not  tolerate.  But  the  necessity  for  an 
effective  judiciary  establishment,  commensurate  with 
the  legislative  authority,  was  generally  admitted,  and 
a large  majority  of  the  States  were  found  to  be  in 
favor  of  conferring  on  the  national  legislature  pow- 
er to  establish  inferior  tribunals ; 1 while  the  pro- 
vision for  a supreme  central  tribunal  was  to  be  made 
imperative  by  the  Constitution. 

The  intention  of  the  committee  also  to  make  the 
judicial  coextensive  with  the  legislative  authority, 
appears  from  the  definition  which  they  gave  to  both. 
Upon  the  national  legislature  they  proposed  to  con- 
fer, in  addition  to  the  rights  vested  in  Congress  by 
the  Confederation,  power  to  legislate  in  all  cases  to 
which  the  separate  States  were  incompetent,  or  in 
which  the  harmony  of  the  United  States  might  be 
interrupted  by  the  exercise  of  individual  legislation ; 
and  the  further  power  to  negative  all  laws  passed  by 
the  several  States  contravening,  in  the  opinion  of 
the  national  legislature,  the  Articles  of  Union,  or 
any  treaties  subsisting  under  the  authority  of  the 

1 Eight  States  in  the  affirmative,  two  in  the  negative,  and  one  divided. 

9 


VOL.  II. 


66 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


Union.  The  jurisdiction  of  the  national  judiciary 
it  was  declared  should  extend  to  all  cases  which 
respect  the  collection  of  the  national  revenue,  and 
to  impeachments  of  national  officers ; and  then  the 
comprehensive  addition  was  made  of  “ questions 
which  involve  the  national  peace  and  harmony.” 
This  latter  provision  placed  the  general  objects, 
which  it  was  declared  ought  to  be  embraced  by  the 
legislative  power,  within  the  cognizance  of  the  ju- 
diciary. Those  objects  were  not  yet  described  in 
detail,  the  purpose  being  merely  to  settle  and  de- 
clare the  principles  on  which  the  powers  of  both 
departments  ought  to  be  founded. 

But,  as  we  have  already  had  occasion  to  see,  the 
idea  of  vesting  in  the  judicial  department  such  con- 
trol over  the  legislation  of  the  separate  States  as 
might  be  surrendered  by  them  to  the  national  gov- 
ernment, was  not  yet  propounded.  The  principle 
which  was  to  ascertain  the  extent  of  that  control 
was  already  introduced  and  acted  upon,  namely, 
that  it  should  embrace  all  laws  of  the  States  which 
might  conflict  with  the  Constitution,  or  the  treaties 
made  under  the  national  authority.  The  plan  at 
present  was,  as  we  have  seen,  to  treat  this  as  a legis- 
lative power,  to  be  executed  by  the  direct  control  of 
a negative.  But  a nearer  view  of  the  great  incon- 
veniences of  such  an  arrangement,  and  the  general 
basis  of  the  jurisdiction  already  marked  out  for  the 
national  judiciary,  led  to  the  development  of  the 
particular  feature  which  was  required  as  a substi- 
tute for  direct  interference  with  the  legislative  pow- 


Ch.  III.] 


JUDICIAL  TENURE. 


67 


ers  of  the  States.  In  truth,  the  important  principle 
which  proposed  to  extend  the  judicial  authority  to 
questions  involving  the  national  peace  and  harmony, 
embraced  all  the  power  that  was  required ; and  it 
only  remained  to  be  seen  that  the  exercise  of  that 
power  by  the  indirect  effect  of  judicial  action  on  the 
law’s  of  the  States  after  they  had  been  passed,  was 
far  preferable  to  a direct  interference  with  those  law’s 
while  in  the  process  of  enactment. 

The  committee,  with  complete  unanimity,  deter- 
mined that  the  judges  of  the  supreme  tribunal 
should  hold  their  offices  during  good  behavior.1 
This  tenure  of  office  wras  taken  from  the  English 
statutes,  and  from  the  constitutions  of  some  of  the 
States  which  had  already  adopted  it.  The  commis- 
sions of  the  judges  in  England,  until  the  year  1700, 
were  prescribed  by  the  crown ; and  although  they 
were  sometimes  issued  to  be  held  during  good  be- 
havior, they  wrere  generally  issued  during  the  pleas- 
ure of  the  crown,  and  it  was  always  optional  with 
the  crown  to  adopt  the  one  or  the  other  tenure,  as  it 
saw  fit.  But  in  the  statute  passed  in  the  thirteenth 
year  of  the  reign  of  William  III.,  w’hich  finally 
secured  the  ascendency  of  the  Protestant  religion  in 
that  country,  and  made  other  provisions  for  the 
rights  and  liberties  of  the  subject,  it  wras  enacted 
that  judges’  commissions  should  be  made  during 
good  behavior,  and  that  their  salaries  should  be  as- 
certained and  established ; but  it  was  made  lawful 


1 This  was  afterwards  applied  to  the  judges  of  the  inferior  courts  also. 


68 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


for  the  crown  to  remove  them  upon  the  address  of 
both  houses  of  Parliament.1  Still,  however,  it  was 
always  considered  that  the  commissions  of  the  judges 
expired  on  the  death  of  the  king  ; and  for  the  pur- 
pose of  preventing  this,  and  in  order  to  make  the 
judges  more  effectually  independent,  a new  statute, 
passed  in  the  first  year  of  the  reign  of  George  III., 
declared  that  the  commissions  of  the  judges  should 
continue  in  force  during  their  good  behavior,  not- 
withstanding the  demise  of  the  crown ; and  that 
such  salaries  as  had  been  once  granted  to  them 
should  be  paid  in  all  future  time,  so  long  as  their 
commissions  should  remain  in  force.  The  provision 
which  made  them  removable  by  the  crown  on  the 
address  of  both  houses  of  Parliament  was  retained 
and  re-enacted.2 

In  framing  the  Constitution  of  the  United  States, 
the  objectionable  feature  of  the  English  system  wras 
rejected,  and  its  valuable  provisions  were  retained. 
No  one,  at  the  stage  of  the  proceedings  which  we 
are  now  examining,  proposed  to  make  the  judges 
removable  on  the  address  of  the  legislature;  and 
although  at  a much  later  period  this  provision  was 
brought  forward,  it  received  the  vote  of  a single 
State  only.  The  first  determination  of  the  Conven- 
tion, in  committee  of  the  whole,  was,  that  the  judges 
should  hold  their  offices  during  good  behavior ; 
that  they  should  receive  punctually,  at  stated  times, 
a fixed  compensation  for  their  services,  in  which  no 


1 Act  12  &13  William  ITT.  ch.  2. 


2 Act  1 Geo.  III.  ch.  23. 


Ch.  III.] 


JUDICIAL  TENURE. 


69 


increase 1 or  diminution  should  be  made  so  as  to 
affect  the  persons  actually  in  office  at  the  time. 

The  appointment  of  the  judges  was  by  general 
consent,  at  this  stage  of  the  proceedings,  vested  in 
the  Senate. 

1 This  -was  afterwards  stricken  out. 


NOTE  ON  THE  JUDICIAL  TENURE. 

Tiif,  English  historians  and  juridical  -writers  have  not  given  a very 
satisfactory  account  of  the  purpose  for  which  the  power  of  removal  on  the 
address  of  the  two  Houses  of  Parliament  was  incorporated  with  the  pro- 
vision which  gave  the  judges  their  commissions  during  good  behavior. 
It  is  obvious  that,  if  the  power  of  removal  is  to  be  regarded  as  an  un- 
qualified power,  to  be  exercised  for  any  cause,  or  without  the  existence  of 
any  cause,  the  office  is  held  during  the  pleasure  of  the  legislative  and 
executive  branches  of  the  government,  and  not  during  the  official  good 
conduct  of  the  incumbent  In  this  view  of  it,  therefore,  the  provision  is 
inconsistent  with  the  declared  tenure  of  the  commission.  On  the  other 
hand,  if  the  power  of  removal  is  not  to  be  regarded  as  a limitation  upon 
the  tenure  of  the  office,  but  the  process  of  removal  is  to  be  considered  as 
a mode  in  which  the  unfitness  or  incapacity  of  the  incumbent  is  to  be 
ascertained,  — treating  it  as  a substitute  for  impeachment,  to  be  used  in 
cases  of  palpable  official  incapacity  or  unfitness,  — then  it  is  not  repug- 
nant to  the  tenure  of  good  behavior.  In  support  of  this  view  of  the  sub- 
ject it  is  to  be  observed  that,  in  the  statute  of  1 Geo.  HI.  c.  23,  the  tenure 
of  good  behavior  is  made  the  leading  and  primary  object  of  the  enact- 
ment The  motives  for  it  are  set  forth  with  great  point  and  emphasis. 
The  King  is  made  to  declare  from  the  throne  to  the  two  houses  of  Par- 
liament that  he  looks  upon  the  independency  and  uprightness  of  judges 
as  essential  to  the  impartial  administration  of  justice,  as  one  of  the  best 
securities  to  the  rights  and  liberties  of  the  subject,  and  as  most  conducive 
to  the  honor  of  the  crown.  The  enacting  part  of  the  statute,  which  fol- 
lows this  recital,  prorides  anew  that  the  judges’  commissions  shall  be  and 
remain  in  force  during  their  good  behavior,  notwithstanding  a demise  of 


70 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  crown  ; and  the  power  of  removal  by  the  King,  on  the  address  of  both 
houses,  follows  this  enactment  as  a proviso.  If,  therefore,  a not  unusual 
rule  of  construction  is  applied,  the  power  embraced  in  the  proviso  should 
be  so  construed  as  to  make  its  operation  consistent  with,  and  not  repug- 
nant to,  the  great  purpose  of  the  statute,  which  was  to  establish  the  tenure 
of  good  behavior.  In  this  view  the  rightful  exercise  of  the  power  may  be 
confined  to  cases  where  the  individual  is  no  longer  within  that  tenure,  or, 
in  other  words,  where  the  good  behavior  has  ceased,  or  become  impossi- 
ble. Upon  this  construction  the  power  of  removal  can  only  be  rightfully 
exercised  when  a cause  exists  which  touches  the  official  conduct  or  ca- 
pacity of  the  incumbent. 

In  the  Constitution  of  the  State  of  Massachusetts,  formed  in  1780,  the 
power  of  removal  by  the  executive,  on  the  address  of  both  houses  of  the 
legislature,  was  adopted  from  the  English  statutes,  and  it  was  introduced 
as  a proviso  after  the  tenure  of  good  behavior  had  been  emphatically  de- 
clared for  all  judicial  officers,  just  as  it  stands  in  the  act  of  1 Geo.  HI. 

An  objection  which  has  sometimes  been  urged  against  the  construction 
above  suggested  is,  that  it  is  narrower  than  the  terms  of  the  provision, 
and  that  it  would  not  include  a case  where  a judge  may  have  discharged 
all  his  official  duties  with  propriety  and  ability,  and  may  yet  be  person- 
ally obnoxious,  as,  for  example,  on  account  of  gross  immorality.  But  the 
answer  to  this  objection  is,  that  the  question,  whether  a case  of  official 
good  conduct  accompanied  by  personal  immorality,  or  the  like  defect  of 
character,  was  intended  to  be  within  the  power  of  removal,  must  be  de- 
termined on  a careful  view  of  the  whole  provision.  The  meaning  and 
scope  of  the  qualification  of  “ good  behavior  ” must  be  first  ascertained. 
If  it  means  simply  that  the  individual  is  to  hold  his  commission  so  long  as 
each  official  duty  is  discharged  in  the  manner  contemplated  by  law,  then 
a mere  personal  immorality,  which  has  not  affected  or  influenced  the  dis- 
charge of  official  duty,  is  not  inconsistent  with  the  good  behavior  estab- 
lished as  the  tenure  of  the  office.  But  if  the  good  behavior  means,  not 
merely  that  the  individual  shall  discharge  his  official  duties  in  a compe- 
tent manner,  with  an  average  amount  of  ability,  and  without  corruption, 
but  that  he  shall  so  order  his  life  and  conversation  as  not  to  expose  him- 
self to  a cessation  of  the  power  to  act  intelligently  and  uprightly,  then 
there  may  undoubtedly  be  a case  of  personal  immorality  that  -would 
touch  the  tenure  of  the  office.  Still  it  must  be  the  tenure  of  the  office 
that  is  touched,  and  it  must  be  touched  by  misconduct  or  incapacity. 
The  phrase  “ good  behavior  ” is  technical,  and  has  always  had  a mean- 
ing attached  to  it  which  confines  it  to  the  discharge  of  official  duty.  It 
is,  therefore,  not  what  men  think  of  the  individual,  or  how  they  feel 


Ch.  HI.] 


JUDICIAL  TENURE. 


71 


towards  him,  or  how  they  regard  him,  but  what  he  does  or  omits  officially, 
that  is  to  determine  whether  he  continues  to  behave  well  in  his  office ; 
and  unless  some  conduct,  or  some  bodily  or  mental  condition,  is  adduced, 
that  shows  him  to  be  incapable  of  fulfilling  the  duties  of  his  station  in  the 
manner  in  which  the  law  intends  they  shall  be  discharged,  his  tenure  of 
good  behavior  is  not  lost. 

But  the  naked  power  of  removal  by  the  other  two  branches  of  the 
government  exists  in  the  English  constitution,  and  in  that  of  the  State  of 
Massachusetts,  without  any  declaration  of  the  purposes  or  occasions  to 
which  it  is  to  be  applied ; and  it  is  not  easy  to  reconcile  it  with  the 
avowed  object  of  judicial  independence  obviously  embraced  by  the  terms 
of  the  commission  prescribed  in  both  of  them.  The  two  most  important 
native  writers  on  the  English  constitution,  Sir  William  Blackstone  and 
Mr.  Hallam,  regard  the  provision  as  a restraint  on  the  former  practice  of 
the  crown,  of  dismissing  judges  when  they  were  not  sufficiently  subservient 
to  the  views  of  the  government  in  political  prosecutions.  Mr.  Ilallam, 
after  referring  to  the  provisions  of  the  two  statutes,  lays  down  the  propo- 
sition, that  “ no  judge  can  be  dismissed  from  office,  except  in  consequence 
of  a conviction  for  some  offence,  or  the  address  of  both  houses  of  Parlia- 
ment, which  is  tantamount  to  an  act  of  the  legislature.”  (Constitutional 
History,  III.  262.)  He  suggests  further,  that  although  the  commissions 
of  the  judges  cannot  be  vacated  by  the  authority  of  the  crown,  yet  that 
they  are  not  wholly  out  of  the  reach  of  its  influence.  They  are  accessi- 
ble to  the  hope  of  further  promotion,  to  the  zeal  of  political  attachment, 
to  the  flattery  of  princes  and  ministers,  and  to  the  bias  of  their  profes- 
sional training.  He  therefore  commends  the  wisdom  of  subjecting  them 
in  some  degree  to  legislative  control.  (Ibid.)  But  it  is  not  to  be  inferred 
from  his  remarks  that  that  control  can  be  rightfqjly  exercised  without  the 
existence  of  a cause  which  affects  their  good  behavior.  On  the  contrary, 
he  appears  to  consider  that  the  purpose  was  to  prevent  a subserviency  to 
the  crown  in  their  official  conduct,  by  subjecting  that  conduct  to  legislative 
scrutiny.  To  the  honor  of  England,  it  is  to  be  remembered  that,  since 
this  power  was  recognized,  there  has  never  been  an  instance  in  which  a 
judge  has  been  removed  for  political  or  party  purposes. 

Mr.  Justice  Story  has  taken  substantially  the  same  Hew  of  the  subject. 
He  says : 11  The  object  of  the  act  of  Parliament  was  to  secure  the  judges 
from  removal  at  the  mere  pleasure  of  the  crown  ; but  not  to  render  them 
independent  of  the  action  of  Parliament  By  the  theory  of  the  British 
constitution,  every  act  of  Parliament  is  supreme  and  omnipotent.  It  may 
change  the  succession  to  the  crown,  and  even  the  very  fundamentals  of 
the  constitution.  It  would  have  been  absurd,  therefore,  to  have  exempt- 


72 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ed  the  judges  alone  from  the  general  jurisdiction  of  this  supreme  authority 
in  the  realm.  The  clause  was  not  introduced  into  the  act  for  the  pur- 
pose of  conferring  the  power  on  Parliament,  for  it  could  not  be  taken 
away  or  restricted,  but  simply  to  recognize  it  as  a qualification  of  the 
tenure  of  office  ; so  that  the  judges  should  have  no  right  to  complain  of 
any  breach  of  an  implied  contract  with  them,  and  the  crown  should  not 
be  deprived  of  the  means  to  remove  an  unfit  judge  whenever  Parliament 
should,  in  their  discretion,  signify  their  assent.”  (Commentaries  on  the 
Constitution,  Vol.  II.  § 1623.) 

By  describing  it  as  a “ qualification  of  the  tenure  of  office,”  the  learned 
commentator  probably  did  not  mean  that  the  power  was  intended  to  be 
recognized  as  a power  to  remove  judges  against  whom  no  official  miscon- 
duct or  incapacity  could  be  charged  ; for  the  context  shows  that  he  was 
speaking  of  the  removal  of  “ unfit”  judges  as  a power  that  it  was  proper 
to  recognize  and  regulate.  If  he  intended  to  lay  it  down  as  a complete 
and  actual  qualification  of  the  tenure  of  good  behavior,  it  must  have  been 
upon  the  theory  to  which  he  refers,  upon  which  an  act  of  Parliament  can 
do  anything,  either  with  or  without  reason.  Upon  this  theory  all  the 
commissions  of  all  the  judges  in  the  realm  may  be  vacated  without  in- 
quiry into  their  fitness  or  unfitness.  But  if  the  true  view  of  the  subject 
is,  that  the  King's  commission,  which  runs  quamdiu  se  bene  gesserit,  cannot 
be  determined  when  the  crown  alone  decides  that  the  good  behavior  has 
ceased,  or  become  impracticable,  but  may  be  determined  when  the  whole 
legislative  power  has  so  decided,  then  in  one  sense  it  is  a qualification  of 
the  commission ; because  the  latter  emanates  from  the  crown,  but  after  it 
has  issued,  it  is  to  be  superintended  by  Parliament  and  the  crown. 

When  we  turn  to  our  American  constitutions,  all  embarrassment  arising 
from  the  English  theory  ,pf  the  omnipotence  of  the  legislative  department 
vanishes  In  our  systems  of  government  the  people  alone  possess  su- 
preme power.  The  legislature  is  but  the  organ  of  their  will  for  certain 
specific  and  limited  purposes,  which  are  carefully  defined  in  a written 
constitution  ; and  no  power  that  is  not  plainly  confided  by  the  constitu- 
tion to  the  legislative  and  executive  departments  of  the  government  can 
be  exercised  by  them.  Under  every  American  constitution,  therefore, 
which  has  conferred  upon  the  executive  power-  to  remove  a judge  upon 
the  address  of  the  two  houses  of  the  legislature,  the  question  whether 
that  power  extends  to  any  cases  but  those  of  official  misconduct  or  inca- 
pacity must  be  determined  by  a careful  consideration  of  the  position 
which  that  constitution  assigns  to  the  judiciary.  If,  as  is  the  case,  for 
example,  under  the  Constitution  of  the  State  of  Massachusetts,  there  is 
a clear  intention  manifest  to  make  the  judiciary  independent  of  the 


Cm  Ill  ] 


JUDICIAL  TENURE. 


73 


other  departments,  and  this  intention  appears  by  other  provisions,  and 
the  enunciation  of  other  principles  besides  that  which  in  terms  establishes 
the  tenure  of  good  behavior,  then  the  power  of  removal  upon  address 
ought  to  be  construed  and  exercised  consistently  with  the  tenure  of  good 
behavior,  and  not  in  direct  repugnance  to  it.  It  is  plain  that,  if  the  pow- 
er is  construed  as  a naked  and  unrestrained  power,  established  as  a direct 
qualification  of  the  tenure  of  office,  it  may  be  used  for  party  purposes, 
and  may  be  exercised  for  any  cause  for  which  a dominant  party  may  see 
fit  to  employ  it. 

The  danger  of  the  abuse  of  this  power,  arising  from  the  absence  of 
any  express  restriction  upon  it,  and  of  any  statement  of  its  purpose,  in 
the  Constitution  of  Massachusetts,  has  led  to  an  unsuccessful  effort  in  that 
State  to  make  its  exercise  more  difficult  than  it  is  under  the  actual  provis- 
ion. In  the  Convention  held  in  the  year  1820,  in  which  the  Constitution 
was  subjected  to  revision,  Mr.  Webster,  Sir.  Justice  Story,  and  others  of 
the  eminent  jurists  of  Massachusetts,  endeavored  to  procure  an  amend- 
ment requiring  the  address  to  be  adopted  by  a vote  of  two  thirds  in  both 
branches,  instead  of  allowing  it  to  be  carried,  as  the  Constitution  has 
always  stood,  and  as  the  rule  is  in  England,  by  a bare  majority.  The 
effort  failed  ; but  the  result  of  the  whole  discussion  to  which  it  gave  rise 
shows  the  general  understanding  of  the  people  of  the  State  with  regard 
to  the  rightful  extent  of  this  power.  The  Convention  was  a very  re- 
markable assembly  of  the  intellect  and  worth  of  the  State,  and  both  the 
political  parties  of  the  time  were  fully  represented  in  it,  by  their  most 
distinguished  members.  All  were  agreed  that  the  power  was  capable  of 
abuse,  and  that  to  apply  it  to  any  other  than  cases  of  official  incapacity 
or  unfitness  would  be  an  abuse.  But  those  who  opposed  the  adoption  of 
a two-thirds  rule  were  unwilling  to  anticipate  such  an  abuse  of  the  power, 
and  their  arguments  prevailed. 

The  framers  of  the  Constitution  of  the  United  States  intrusted  no  such 
power  over  the  judiciary  to  the  other  branches  of  the  government. 
They  regarded  the  possibility  of  its  being  used  for  improper  purposes  as 
a sufficient  reason  why  it  should  not  exist.  They  thought  it,  moreover, 
a contradiction  in  terms  to  say  that  the  judges  should  hold  their  offices 
during  good  behavior,  and  yet  be  removable  without  a trial.  But  the 
radical  object'on  was  one  that  does  not  seem  to  have  been  sufficiently 
attended  to  in  the  early  formation  of  some  of  the  State  constitutions,  but 
which  the  peculiar  system  established  by  the  Constitution  of  the  United 
States  made  especially  prominent. 

That  Constitution  was  designed  to  be  in  some  respects  an  abridgment 
of  the  previous  powers  of  the  States.  Like  the  State  constitutions,  also, 

VOL.  II.  10 


74 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


it  embraced  a careful  distribution  of  the  powers  of  government  between 
the  different  departments,  and  a careful  separation  of  the  functions  of 
one  department  from  those  of  another.  Questions  must,  therefore,  neces- 
sarily arise  in  the  administration  of  the  government,  whether  one  of  these 
departments  had  overstepped  the  limits  assigned  to  it  as  against  the 
others,  and  whether  the  action  of  the  general  or  the  State  governments 
in  particular  instances  is  within  their  appropriate  spheres.  These,  now 
familiar  to  us  as  constitutional  questions,  were  to  be  subjected  to  the 
arbitrament  of  the  national  judiciary  ; and  it  was  almost  universally  felt 
that  this  delicate  and  important  power  must  be  confided  to  judges  whose 
tenure  of  office  could  be  touched  only  by  the  solemn  process  of  accusa- 
tion and  impeachment.  The  same  necessity  exists  under  a State  consti- 
tution, but  perhaps  not  in  the  same  degree  ; for  while  the  judiciary  of  a 
State  is  often  called  upon  to  decide  finally  upon  the  conformity  of  acts  of 
legislation  with  the  State  constitution,  — and  ought  therefore  clearly  to 
be  beyond  the  reach  of  legislative  influence,  — yet  no  State  judiciary  is 
the  final  arbiter  between  the  rights  and  powers  of  the  national  govern- 
ment and  the  rights  and  powers  of  the  States.  This  function  belongs 
to  the  supreme  judiciary  of  the  United  States.  It  was  foreseen  that  it 
would  not  infrequently  involve  the  decision  of  questions  in  which  whole 
classes  of  States  might  have  the  deepest  interest,  which  would  connect 
themselves  with  party  discussions,  and  on  which  the  representatives  of 
the  States  in  the  national  legislature  would  be  likely  to  share  in  the  feel- 
ings, and  even  in  the  passions,  of  their  constituents.  There  could  be  no 
security  for  a judiciary  called  upon  to  decide  such  questions,  if  they  were 
to  be  subject  to  a power  of  removal  by  the  other  two  branches  of  the 
government.  Their  commissions  might  make  them  theoretically  inde- 
pendent, but  practically  they  could  be  removed  at  the  pleasure  of  those 
whom  they  might  have  offended.  In  truth,  there  is  no  State  in  this 
Union  where  such  a power  of  removal  is  vested  without  qualification  in 
the  legislative  and  executive  departments,  in  which  the  judges  can  be 
said  to  hold  their  commissions  during  good  behavior,  unless  that  power  is 
construed  to  embrace  only  those  eases  of  palpable  incapacity  in  which 
an  impeachment  would  be  unnecessary  or  impracticable.  As  a naked 
and  unqualified  power,  it  is  repugnant  to  the  tenure  of  good  behavior. 
It  was  so  regarded  in  the  Convention  which  framed  the  Constitution 
of  the  United  States,  where  a proposition  to  introduce  it  received  the 
vote  of  the  single  State  of  Connecticut  only.  (Madison,  Elliot,  Y. 
481,  482.) 


CHAPTER  IV. 


Admission  of  New  States.  — Guaranty  of  Republican 
Government.  — Power  of  Amendment.  — Oatii  to  Sup- 
port the  New  System.  — Ratification. 


Having  settled  a general  plan  for  the  organization 
of  the  three  great  departments  of  government,  the 
committee  next  proceeded  .to  provide  for  certain 
other  objects  of  primary  importance,  the  necessity 
for  which  had  been  demonstrated  by  the  past  his- 
tory of  the  Confederacy.  The  first  of  these  was  the 
admission  of  new  States  into  the  Union. 

It  had  long  been  apparent,  that  the  time  would 
sooner  or  later  arrive  when  the  limits  of  the  United 
States  must  be  extended,  and  the  number  of  the 
States  increased.  Circumstances  had  made  it  im- 
possible that  the  benefits  and  privileges  of  the  Union 
should  be  confined  to  the  original  thirteen  com- 
munities by  whom  it  had  been  established.  Pop- 
ulation had  begun  to  press  westward  from  the 
Atlantic  States  with  the  energy  and  enterprise  that 
have  marked  the  Anglo-American  character  since 
the  first  occupation  of  the  country.  Wherever  the 
hardy  pioneers  of  civilization  penetrated  into  the 
wilderness  of  the  Northwest,  they  settled  upon 
lands  embraced  by  those  shadowy  boundaries  which 


76  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

carried  the  territorial  claims  of  some  of  the  older 
States  into  the  region  beyond  the  Ohio.  Circum- 
stances, already  detailed  in  a former  part  of  this 
work,  had  compelled  a surrender  of  these  territorial 
claims  to  the  United  States  ; and  in  the  efforts  made 
by  Congress,  both  before  and  after  the  cessions  had 
been  completed,  to  provide  for  the  establishment  of 
new  States,  and  for  their  admission  into  the  Union, 
we  have  already  traced  one  of  the  great  defects  of 
the  Confederation,  which  rendered  it  incapable  of 
meeting  the  exigencies  created  by  this  inevitable 
expansion  of  the  country.1 

In  the  year  1784,  when  Mr.  Jefferson  brought 
into  Congress  a measure  for  the  organization  and 
admission  of  new  States,  to  be  formed  upon  the  ter- 
ritories that  had  been  or  might  thereafter  be  ceded 
to  the  United  States,  he  seems  to  have  considered 
that  the  Articles  of  Confederation  authorized  the 
admission  of  new  States  formed  out  of  territory  that 
had  belonged  to  a State  already  in  the  Union,  by  a 
vote  of  nine  States  in  Congress.  But  a majority  of 
the  States  in  Congress  evidently  regarded  the  power 
of  admission  as  doubtful ; and  although  they  passed 
the  resolves  for  the  admission  of  new  States,  — prin- 
cipally because  it  was  extremely  important  to  invite 
cessions  of  Western  territory,  — they  left  the  provis- 
ion as  to  the  mode  of  admission  so  indefinite,  that 
the  whole  question  of  power  would  have  to  be 
opened  and  decided  on  the  first  application  that 

1 Ante,  Vol.  I.  Book  III.  Chap.  V. 


/ 


Ch.  IV.] 


ADMISSION  OF  NEW  STATES. 


might  be  made  by  a State  to  be  admitted  into  the 
Union.1 

When  the  Ordinance  of  1787  was  formed,  it 


1 Mr.  Jefferson  has  very  lucidly 
stated  the  position  of  the  question 
in  some  observations  furnished  by 
him,  when  in  Paris,  to  one  of  the 
editors  of  the  Encyclope'die  Md- 
thodique,  in  1786  or  1787,  which  I 
here  insert  entire.  “ The  eleventh 
Article  of  Confederation  admits 
Canada  to  accede  to  the  Confeder- 
ation at  its  own  will,  but  adds,  ‘ no 
other  Colony  shall  be  admitted  to 
the  same  unless  such  admission  be 
agreed  to  by  nine  States.’  When 
the  plan  of  April,  1784,  for  estab- 
lishing new  States,  was  on  the  car- 
pet, the  committee  who  framed  the 
report  of  that  plan  had  inserted 
this  clause : ‘ Provided  nine  States 
agree  to  such  admission,  according 
to  the  reservation  of  the  eleventh 
of  the  Articles  of  Confederation.’ 
It  was  objected,  — 1.  That  the 
words  of  the  Confederation,  ‘no 
other  Colony,’  could  refer  only  to 
the  residuary  possessions  of  Great 
Britain,  as  the  two  Floridas,  Nova 
Scotia,  &c.,  not  being  already  parts 
of  the  Union ; that  the  law  for 
‘ admitting  ’ a new  member  into 
the  Union  could  not  be  applied  to 
a territory  which  was  already  in 
the  Union,  as  making  part  of  a 
State  which  was  a member  of  it. 
2.  That  it  would  be  improper  to 
allow  ‘ nine  ’ States  to  receive  a 
new  member,  because  the  same 
reasons  which  rendered  that  num- 
ber proper  now  would  render  a 


greater  one  proper  when  the  num- 
ber composing  the  Union  should  be 
increased.  They  therefore  struck 
out  this  paragraph,  and  inserted  a 
proviso,  that  ‘ the  consent  of  so 
many  States  in  Congress  shall  be 
first  obtained  as  may  at  the  time  be 
competent  ’ ; thus  leaving  the  ques- 
tion whether  the  eleventh  Article 
applies  to  the  admission  of  new 
States  to  be  decided  when  that  ad- 
mission shall  be  asked.  See  the 
Journal  of  Congress  of  April  20, 
1784.  Another  doubt  was  started 
in  this  debate,  viz.  whether  the 
agreement  of  the  nine  States  re- 
quired by  the  Confederation  was 
to  be  made  by  their  legislatures,  or 
by  their  delegates  in  Congress  ? 
The  expression  adopted,  viz.  ‘ so 
many  States  in  Congress  is  first 
obtained,’  shows  what  was  their 
sense  of  this  matter.  If  it  be 
agreed  that  the  eleventh  Article  of 
the  Confederation  is  not  to  be  ap- 
plied to  the  admission  of  these  new 
States,  then  it  is  contended  that 
their  admission  comes  within  the 
thirteenth  Article,  which  forbids 
‘ any  alteration  unless  agreed  to  in 
a Congress  of  the  United  States, 
and  afterwards  confirmed  by  the 
legislatures  of  every  State.’  The 
independence  of  the  new  States  of 
Kentucky  and  Franklin  will  soon 
bring  on  the  ultimate  decision  of 
all  these  questions.”  (Jefferson’s 
Works,  IX.  251.)  That  the  ad- 


78 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


made  provision  for  the  establishment  of  new  States 
in  the  territory,  and  declared  that,  when  any  of  them 
should  have  sixty  thousand  free  inhabitants,  it  should 


mission  of  a new  State  into  the 
Union  could  have  been  regarded 
as  an  alteration  of  the  Articles  of 
Confederation,  within  the  meaning 
and  intention  of  the  thirteenth 
Article,  seems  scarcely  probable. 
Such  an  admission  would  only  have 
increased  the  number  of  the  par- 
ties to  the  Union,  but  it  would  of 
itself  have  made  no  change  in  the 
Articles ; and  it  was  against  alter- 
ations in  the  Articles  that  the  pro- 
vision of  the  thirteenth  was  di- 
rected. The  objections  which  Mr. 
Jefferson  informs  us  were  raised  in 
Congress  to  a deduction  of  the 
power  from  the  eleventh  Article, 
appear  to  be  decisive.  In  truth, 
when  the  Articles  of  Confederation 
were  framed,  the  subject  of  the  ad- 
mission of  new  States,  so  far  as  it 
had  been  considered  at  all,  was 
connected  with  the  difficult  and 
delicate  controversy  respecting  the 
western  boundaries  of  some  of  the 
old  States,  and  the  equitable  claim 
of  the  Union  to  become  the  pro- 
prietor of  the  unoccupied  lands 
beyond  those  boundaries.  An  at- 
tempt was  made  to  obtain  for 
Congress,  in  the  Articles  of  Con- 
federation, power  to  ascertain  and 
fix  the  western  boundaries  of  those 
States,  and  to  lay  out  the  lands  be- 
yond them  into  new  States.  But 
it  failed  (ante,  Vol.  I.  291),  and 
Congress  could  thereafter  be  said 
to  possess  no  power  to  admit  new 


States,  except  what  depended  on  a 
doubtful  construction  of  the  Arti- 
cles of  Confederation. 

Still,  both  when  they  invited  the 
cessions  of  their  territorial  claims 
by  the  States  of  Virginia,  New 
York,  &c.,  and  after  those  cessions 
had  been  made,  Congress  acted  as 
if  they  had  constitutional  authority 
to  form  new  States,  and  to  admit 
them  into  the  Union.  (Ante,  Vol. 
I.  292-308.)  When  the  Ordi- 
nance of  1787,  for  the  regulation 
and  government  of  the  Northwest- 
ern Territory,  was  adopted,  the 
power  to  admit  new  States  was 
again  assumed.  The  Convention 
for  forming  the  Constitution  was, 
however,  then  sitting,  and  it  may 
be  that  the  framers  of  the  Ordi- 
nance introduced  into  that  instru- 
ment the  stipulation  that  the  new 
States  should  be  admitted  on  an 
equal  footing  with  the  old  ones,  in 
the  confidence  that  the  constitu- 
tional power  would  be  supplied  by 
the  Convention.  At  any  rate,  the 
provisions  of  the  Ordinance,  as  well 
as  those  of  the  previous  resolves 
of  Congress  on  the  same  subject  of 
the  Northwestern  Territory,  and 
the  position  of  Kentucky,  Vermont, 
Maine,  and  Tennessee  (then  called 
Franklin),  imposed  upon  the  Con- 
vention an  imperative  necessity  for 
some  action  that  would  open  the 
door  of  the  Union  to  new  mem- 
bers. 


Ch.  IV.]  GUARANTY  OF  REPUBLICAN  GOVERNMENT.  79 


be  admitted  into  Congress  on  an  equal  footing  with 
the  original  States.  But  the  mode  of  admission  was 
not  prescribed.  The  power  to  admit  was  assumed, 
and  no  rule  of  voting  on  the  question  of  admission 
was  referred  to.  The  probability  is,  that  Congress 
anticipated  at  this  time  that  a definite  constitutional 
power  would  he  provided  by  the  Convention  that 
had  been  summoned  to  revise  the  federal  system. 
This  power  was  embraced  in  the  plan  adopted  in  the 
committee  of  the  whole  of  that  body,  by  a resolve 
which  declared  “ that  provision  ought  to  be  made 
for  the  admission  of  States  lawfully  arising  within 
the  limits  of  the  United  States,  whether  from  a vol- 
untary junction  of  government  and  territory,  or 
otherwise,  with  the  consent  of  a number  of  voices  in 
the  national  legislature  less  than  the  whole.”  In 
what  mode  this  provision  was  made  will  be  seen 
hereafter,  when  we  come  to  examine  the  framework 
of  the  Constitution. 

Another  of  the  new  powers  now  proposed  to  be 
given  to  the  Union  was  that  of  protecting  and  up- 
holding the  governments  of  the  States.  I have 
already  had  occasion  to  explain  the  relations  of  the 
Confederation  to  its  members  in  a time  of  internal 
disturbance  and  peril ; and  have  given  to  the  inca- 
pacity of  that  government  to  afford  any  aid  in  such 
emergencies  great  prominence  among  the  causes 
which  led  to  the  revision  of  the  federal  system.1 
Under  that  system  the  States  had  been  so  complete- 


1 Ante,  Vol.  I.  Book  III.  Chap.  III.  pp.  260  - 275. 


80 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ly  sovereign,  and  so  independent  of  each  other  in  all 
that  related  to  their  internal  concerns,  that  the  gov- 
ernment of  any  one  of  them  might  have  been  sub- 
verted without  the  possibility  of  an  authorized  and 
regulated  interference  by  the  rest.  The  constitu- 
tional and  republican  liberty  that  had  been  estab- 
lished in  these  States  after  the  Revolution  had  freed 
them  from  the  dominion  of  England,  was  at  that 
period  a new  and  untried  experiment ; and  in  order 
that  we  of  this  generation  may  be  able  to  appre- 
ciate the  importance  of  the  guaranty  proposed  to 
be  introduced  into  the  Constitution  of  the  United 
States,  it  is  necessary  for  us  to  look  somewhat  far- 
ther than  the  particular  circumstances  of  the  com- 
motions in  New  England  that  marked  the  year  1787 
as  an  era  of  especial  danger  to  these  republican 
governments.  It  is,  in  fact,  necessary  for  us  to  re- 
member the  contemporaneous  history  of  Europe, 
and  to  observe  how  the  events  that  were  taking 
place  in  the  Old  World  necessarily  acted  upon  our 
condition,  prospects,  and  welfare. 

The  French  Revolution,  consummated  in  1791  by 
the  execution  of  the  King,  was  already  begun  when 
the  Constitution  of  the  United  States  Avent  into 
operation.  No  one  Avho  has  examined  the  history 
of  the  first  years  of  our  present  national  government, 
can  fail  to  have  been  impressed  Avith  the  dangers 
Avhich  the  administration  of  our  domestic  affairs  in- 
curred of  becoming  complicated  Avith  the  politics  of 
Europe.  As  in  all  other  countries,  so  in  America, 
the  events  and  progress  of  the  Revolution  in  France 


Ch.  iv.j  guaranty  of  republican  government.  81 

found  sympathy  or  reprobation,  according  to  the 
natural  tendencies,  the  previous  associations,  and 
the  political  sentiments  of  individuals.  But  in  the 
United  States  there  was  a peculiar  and  predisposing 
cause  for  the  liveliest  interest  in  the  success  of  the 
principles  that  were  believed,  by  large  masses  of  the 
people,  to  be  involved  in  the  French  Revolution. 
Our  own  struggles  for  liberty,  our  bold  and  success- 
ful assertion  of  the  rights  of  man,  and  our  achieve- 
ment of  the  means  and  opportunity  of  self-govern- 
ment, had  evidently  and  strikingly  acted  upon  France. 
The  people  of  the  United  States  were  fully  sensible 
of  this ; and  transferring  to  the  French  nation  the 
debt  of  gratitude  for  the  aid  which  had  flowed  to  us 
in  the  first  instance  from  their  government  without 
any  special  influence  of  their  own,  large  numbers  of 
our  people  became  warmly  enlisted  in  the  cause  of 
that  Revolution,  of  which  the  early  promise  seemed 
so  encouraging  to  the  best  hopes  of  mankind,  and 
the  full  development  of  which  first  ruined  the  inter- 
ests of  liberty,  in  the  wanton  excesses  of  anarchy 
and  national  ambition,  and  finally  crushed  them 
beneath  the  usurpations  and  necessities  of  military 
despotism.  On  the  other  hand,  the  more  cautious 
— who,  if  they  had  not  from  the  first  looked  with 
distrust  upon  the  whole  movement  of  the  Revolu- 
tionary party  in  France,  very  soon  believed  that  it 
could  result  in  no  real  benefit  to  France  or  to  the 
world  — tended  strongly  and  naturally  to  the  side 
of  those  governments  with  which  the  leaders  of  the 
Revolution  had  to  contend.  In  consequence  of  this 

VOL.  II.  11 


82 


FORMATION  OF  TIIE  CONSTITUTION.  [Book  IV. 


state  of  feeling  among  different  portions  of  the  peo- 
ple of  the  United  States,  with  reference  to  French 
affairs,  and  of  the  conduct  of  France  and  England 
towards  ourselves,  the  administration  of  Washington 
had  great  difficulty  both  in  preserving  the  neutral- 
ity of  the  country,  and  in  excluding  foreign  influ- 
ence and  interference  in  our  domestic  affairs. 

Had  this  state  of  things,  which  followed  immedi- 
ately after  the  inauguration  of  our  new  government, 
found  us  still  under  the  Confederation,  there  can  be 
no  doubt  that  our  condition  would  have  afforded  to 
the  Revolutionary  party  in  France  the  means  not 
only  of  disseminating  their  principles  among  us,  but 
also  of  overturning  any  of  the  institutions  of  the 
weaker  States  which  might  have  stood  in  the  way  of 
their  acquiring  an  influence  in  America.  Yet  what 
form  or  principle  of  government  is  there  in  the 
world,  that  more  imperatively  requires  all  foreign 
or  external  influence  to  be  repelled,  than  our  own 
republican  system,  of  which  it  is  a cardinal  doctrine 
that  every  institution  and  every  law  must  express 
the  uncontrolled  and  spontaneous  will  of  a majority 
of  the  people  who  constitute  the  political  society? 
Other  governments  may  be  upheld  by  the  interfer- 
ence of  their  neighbors ; other  systems  may  require, 
and  perhaps  rightfully  admit,  foreign  influence.  Ours 
demand  an  absolute  immunity  from  foreign  control, 
and  can  exist  only  when  the  authority  of  the  people 
is  made  absolutely  free.  That  their  authority  should 
be  made  and  kept  free  to  act  upon  the  principles  that 
enable  it  to  operate  with  certainty  and  safety,  it  re- 


Ch  IV.]  GUARANTY  OF  REPUBLICAN  GOVERNMENT.  83 


quires  the  guaranty  of  a system  that  rests  upon  the 
same  principles,  is  committed  to  the  same  destiny,  is 
itself  constituted  by  American  power,  and  is  created 
for  the  express  purpose  of  preserving  the  republican 
form,  the  theory  and  the  right  of  self-government. 

Such  was  the  purpose  of  the  framers  of  the  Con- 
stitution, when,  in  this  early  stage  of  their  deliber- 
ations, they  determined  that  a republican  constitu- 
tion should  be  guaranteed  by  the  United  States  to 
each  of  the  States.1  The  object  of  this  provision 
was,  to  secure  to  the  people  of  each  State  the  power 
of  governing  their  own  community,  through  the 
action  of  a majority,  according  to  the  fundamental 
rules  which  they  might  prescribe  for  ascertaining 
the  public  will.  The  insurrection  in  Massachusetts, 
then  just  suppressed,  had  made  the  dangers  that 
surround  this  theory  of  government  painfully  ap- 
parent. It  had  demonstrated  the  possibility  that  a 
minority  might  become  in  reality  the  ruling  power. 
Fortunately,  no  foreign  interference  had  then  inter- 
vened ; but  a very  few  years  only  elapsed,  before 
a crisis  occurred,  in  which  the  institutions  of  the 
States  would  have  been  quite  unable  to  withstand 
the  shocks  proceeding  from  the  French  Revolu- 
tion, if  the  government  of  the  Union  had  not  been 

1 As  the  resolution  was  origi-  rise,  the  provision  was  subsequently 
nally  passed,  it  declared  that  “ a changed  to  a guaranty  of  “ a repub- 
republican  constitution,  and  its  ex-  lican  form  of  government,”  and  of 
isting  laws,  ought  to  be  guaranteed  protection  against  “invasion”  and 
to  each  State  by  the  United  States.”  “ domestic  violence,”  as  it  now 
On  account  of  the  ambiguity  of  the  stands  in  Art.  IV.  Sect.  4 of  the 
expression  “ existing  laws,”  and  the  Constitution, 
controversies  to  which  it  might  give 


84 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


armed  with,  the  power  of  protecting  and  upholding 
them. 

The  committee  also  added  another  new  feature  to 
their  plan  of  government,  which  was  a capacity  of 
being  amended.  The  Articles  of  Confederation  ad- 
mitted of  changes  only  when  they  had  been  agreed 
upon  in  Congress,  and  had  afterwards  been  confirmed 
by  the  legislatures  of  all  the  States.  Indeed,  it  re- 
sulted necessarily  from  the  nature  of  that  govern- 
ment, that  it  could  only  be  altered  by  the  consent 
of  all  the  parties  to  it.  It  was  now  proposed  and 
declared,  that  provision  ought  to  be  made  for  the 
amendment  of  the  Articles  of  Union,  whenever  it 
should  seem  necessary.  This  declaration  looked  to 
the  establishment  of  some  new  method  of  originat- 
ing improvements  in  the  system  of  government,  and 
a new  rule  for  their  adoption. 

It  was  also  determined  that  the  members  of  the 
State  governments  should  be  bound  by  oath  to  sup- 
port the  Articles  of  Union.  The  purpose  of  this 
provision  was  to  secure  the  supremacy  of  the  na- 
tional government,  in  cases  of  collision  between  its 
authority  and  the  authority  of  the  States.  It  was 
a new  feature  in  the  national  system,  and  received 
at  first  the  support  of  only  a bare  majority  of  the 
States.1 

Finally,  it  was  provided  that  the  new  system,  after 
its  approbation  by  Congress,  should  be  submitted  to 

1 Massachusetts,  Pennsylvania,  it  (6) ; Connecticut,  New  Jersey, 
Virginia,  North  Carolina,  South  New  York,  Delaware,  and  Mary- 
Carolina,  and  Georgia  voted  for  land  voted  against  it  (5). 


Ch.  IV.] 


RATIFICATION. 


85 


representative  assemblies  recommended  by  the  State 
legislatures,  to  be  expressly  chosen  by  the  people  to 
consider  and  decide  thereon.  The  question  has  of- 
ten been  discussed,  whether  this  mode  of  ratification 
marks  in  any  way  the  character  of  the  government 
established  by  the  Constitution.  At  present  it  is 
only  necessary  to  observe,  that  the  design  of  the 
committee  was  to  substitute  the  authority  of  the 
people  of  the  States  in  the  place  of  that  of  the  State 
legislatures,  for  a threefold  purpose.  First,  it  was 
deemed  desirable  to  resort  to  the  supreme  authority 
of  the  people,  in  order  to  give  the  new  system  a 
higher  sanction  than  could  be  given  to  it  by  the 
State  governments.  Secondly,  it  was  thought  ex- 
pedient to  get  rid  of  the  doctrine  often  asserted 
under  the  Confederation,  that  the  Union  was  a mere 
compact  or  treaty  between  independent  States,  and 
that  therefore  a breach  of  its  articles  by  any  one 
State  absolved  the  rest  from  its  obligations.  In  the 
third  place,  it  was  intended,  by  this  mode  of  ratifi- 
cation, to  enable  the  people  of  a less  number  of  the 
States  than  the  whole  to  form  a new  Union,  if  all 
should  not  be  willing  to  adopt  the  new  system.1 
The  votes  of  the  States  in  committee,  upon  this  new 
mode  of  ratification,  show  that  on  one  side  were 
ranged  the  States  that  were  aiming  to  change  the 
principle  of  the  government,  and  on  the  other  the 
States  that  sought  to  preserve  the  principle  of  the 
Confederation.2 

1 See  Madison,  Elliot,  V.  157, 

158,  183. 


2 Massachusetts,  Pennsylvania, 
Virginia,  North  Carolina,  South 


86 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


These,  together  with  a provision  that  the  author- 
ity of  the  old  Congress  should  be  continued  to  a given 
day  after  the  changes  should  have  been  adopted,  and 
that  their  engagements  should  be  completed  by  the 
new  government,  were  the  great  features  of  the  sys- 
tem prepared  by  the  committee  of  the  whole,  and 
reported  to  the  Convention,  on  the  thirteenth  of 
June.1 


Carolina,  Georgia,  ay , 6 ; Connect- 
icut, New  York,  New  Jersey,  no, 
3 ; Delaware,  Maryland,  divided. 
See  further  on  the  subject  of  “ Rat- 
ification,” post,  Index. 

1 The  report  was  in  the  follow- 
ing words : — 

“1.  Resolved,  That  it  is  the 
opinion  of  this  committee  that  a 
national  government  ought  to  be 
established,  consisting  of  a su- 
preme legislative,  executive,  and 
judiciary. 

“ 2.  Resolved,  That  the  national 
legislature  ought  to  consist  of  two 

D O 

branches. 

“3.  Resolved,  That  the  members 
of  the  first  branch  of  the  national 
legislature  ought  to  be  elected  by 
the  people  of  the  several  States  for 
the  term  of  three  years ; to  receive 
fixed  stipends  by  which  they  may 
be  compensated  for  the  devotion 
of  their  time  to  the  public  service, 
to  be  paid  out  of  the  national  treas- 
ury; to  be  ineligible  to  any  office 
established  by  a particular  State,  or 
under  the  authority  of  the  United 
States,  (except  those  peculiarly 
belonging  to  the  functions  of  the 
first  branch,)  during  the  term  of 
service,  and  under  the  national 


government,  for  the  space  of  one 
year  after  its  expiration. 

“ 4.  Resolved,  That  the  members 
of  the  second  branch  of  the  national 
legislature  ought  to  be  chosen  by 
the  individual  legislatures ; to  be  of 
the  age  of  thirty  years,  at  least;  to 
hold  their  offices  for  a term  suffi- 
cient to  insure  their  independence, 
namely,  seven  years;  to  receive 
fixed  stipends,  by  which  they  may 
be  compensated  for  the  devotion 
of  their  time  to  the  public  service, 
to  be  paid  out  of  the  national  treas- 
ury ; to  be  ineligible  to  any  office 
established  by  a particular  State,  or 
under  the  authority  of  the  United 
States,  (except  those  peculiarly 
belonging  to  the  functions  of  the 
second  branch,)  during  the  term  of 
service,  and  under  the  national  gov- 
ernment, for  the  space  of  one  year 
after  its  expiration. 

“ 5.  Resolved,  That  each  branch 
ought  to  possess  the  right  of  origi- 
nating acts. 

“ 6.  Resolved,  That  the  national 
legislature  ought  to  be  empowered 
to  enjoy  the  legislative  rights  vested 
in  Congress  by  the  Confederation ; 
and,  moreover,  to  legislate  in  all 
cases  to  which  the  separate  States 


Cu.  IV.] 


OUTLINE  OF  THE  CONSTITUTION. 


87 


are  incompetent,  or  in  which  the 
harmony  of  the  United  States  may 
be  interrupted  by  the  exercise  of 
individual  legislation ; to  negative 
all  laws  passed  by  the  several  States 
contravening,  in  the  opinion  of  the 
national  legislature,  the  Articles  of 
Union,  or  any  treaties  subsisting 
under  the  authority  of  the  Union. 

“ 7.  Resolved , That  the  right  of 
suffrage  in  the  first  branch  of  the 
national  legislature  ought  not  to  be 
according  to  the  rule  established  in 
the  Articles  of  Confederation,  but 
according  to  some  equitable  ratio 
of  representation ; namely,  in  pro- 
portion to  the  whole  number  of 
white  and  other  free  citizens  and 
inhabitants,  of  every  age,  sex,  and 
condition,  including  those  bound  to 
servitude  for  a term  of  years,  and 
three  fifths  of  all  other  persons  not 
comprehended  in  the  foregoing  de- 
scription, except  Indians  not  pay- 
ing taxes  in  each  State. 

“ 8.  Resolved , That  the  right  of 
suffrage  in  the  second  branch  of  the 
national  legislature  ought  to  be  ac- 
cording to  the  rule  established  for 
the  first 

“ 9.  Resolved,  That  a national 
executive  be  instituted,  to  consist 
of  a single  person,  to  be  chosen 
by  the  national  legislature,  for  the 
term  of  seven  years,  with  power  to 
carry  into  execution  the  national 
laws,  to  appoint  to  offices  in  cases 
not  otherwise  provided  for,  to  be 
ineligible  a second  time,  and  to  be 
removable  on  impeachment  and 
conviction  of  malpractice  or  neglect 
of  duty ; to  receive  a fixed  stipend, 
by  which  he  may  be  compensated 
for  the  devotion  of  his  time  to  the 


public  service,  to  be  paid  out  of  the 
national  treasury. 

“ 10.  Resolved,  That  the  national 
executive  shall  have  a right  to  neg- 
ative  any  legislative  act,  which  shall 
not  be  afterwards  passed  unless  by 
two  thirds  of  each  branch  of  the  na- 
tional legislature. 

“11.  Resolved,  That  a national 
judiciary  be  established,  to  consist 
of  one  supreme  tribunal,  the  judges 
of  which  shall  be  appointed  by  the 
second  branch  of  the  national  legis- 
lature, to  hold  their  offices  during 
good  behavior,  and  to  receive  punc- 
tually, at  stated  times,  a fixed  com- 
pensation for  their  services,  in 
which  no  increase  or  diminution 
shall  be  made  so  as  to  affect  the 
persons  actually  in  office  at  the 
time  of  such  increase  or  diminu- 
tion. 

“ 1 2.  Resolved,  That  the  national 
legislature  be  empowered  to  ap- 
point inferior  tribunals. 

“ 13.  Resolved,  That  the  juris- 
diction of  the  national  judiciary 
shall  extend  to  all  cases  which  re- 
spect the  collection  of  the  national 
revenue,  impeachments  of  any  na- 
tional officers,  and  questions  which 
involve  the  national  peace  and  har- 
mony. 

“ 14.  Resolved,  That  provision 
ought  to  be  made  for  the  admission 
of  States  lawfully  arising  without 
the  limits  of  the  United  States, 
whether  from  a voluntary  junction 
of  government  and  territory,  or 
otherwise,  with  the  consent  of  a 
number  of  voices  in  the  national 
legislature  less  than  the  whole. 

“ 15.  Resolved,  That  provision 
ought  to  be  made  for  the  continu- 


88 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


ance  of  Congress,  and  their  author- 
ities and  privileges,  until  a given 
day  after  the  reform  of  the  Articles 
of  Union  shall  be  adopted,  and  for 
the  completion  of  all  their  engage- 
ments. 

“16.  Resolved , That  a republi- 
can constitution,  and  its  existing 
laws,  ought  to  be  guaranteed  to 
each  State  by  the  United  States. 

“17.  Resolved,  That  provision 
ought  to  be  made  for  the  amend- 
ment of  the  Articles  of  Union, 
whensoever  it  shall  seem  neces- 
sary. 

“ 18.  Resolved,  That  the  legisla- 


tive, executive,  and  judiciary  pow- 
ers within  the  several  States  ought 
to  be  bound  by  oath  to  support  the 
Articles  of  Union. 

“ 19.  Resolved,  That  the  amend- 
ments which  shall  be  offered  to  the 
Confederation  by  the  Convention 
ought,  at  a proper  time  or  times 
after  the  approbation  of  Congress, 
to  be  submitted  to  an  assembly  or 
assemblies  of  representatives,  rec- 
ommended by  the  several  legisla- 
tures, to  be  expressly  chosen  by 
the  people  to  consider  and  decide 
thereon.” 


CHAPTER  Y. 


Issue  between  the  Virginia  and  the  New  Jersey  Plans. — 

Hamilton’s  Propositions.  — Madison’s  View  of  the  New 

Jersey  Plan. 

The  nature  of  the  plan  of  government  thus  pro- 
posed — called  generally  in  the  proceedings  of  the 
Convention  the  Virginia  plan  — may  be  perceived 
from  the  descriptions  that  have  now  been  given  of 
the  design  and  scope  of  its  principal  features,  and  of 
the  circumstances  out  of  which  they  arose.  It  pur- 
ported to  be  a supreme  and  a national  government ; 
and  we  are  now  to  inquire  in  what  sense  and  to  what 
extent  it  was  so. 

Its  powers,  as  we  have  seen,  were  to  be  distributed 
among  the  three  departments  of  a legislative,  an  ex- 
ecutive, and  a judiciary.  Its  legislative  body  was 
to  consist  of  two  branches,  one  of  which  was  to  be 
chosen  directly  by  the  people  of  the  States,  the  other 
by  the  State  legislatures;  but  in  both,  the  people 
of  the  States  were  to  be  represented  in  proportion 
to  their  numbers. 

Its  legislative  powers  were  to  embrace  certain 
objects,  to  which  the  legislative  powers  of  the  sep- 
arate States  might  be  incompetent,  or  where  their 

exercise  might  be  injurious  to  the  national  inter- 
12 


VOL.  II. 


90 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ests ; 1 and  it  was  moreover  to  have  a certain  restrain- 
ing authority  over  the  legislation  of  the  States.  This 
plan  necessarily  supposed  that  the  residue  of  the 
sovereignty  and  legislative  power  of  the  States  would 
remain  in  them  after  these  objects  had  been  provided 
for ; and  it  therefore  contemplated  a system  of  gov- 
ernment, in  which  the  individual  citizen  might  be 
acted  upon  by  two  separate  and  distinct  legislative 
authorities.  But  by  providing  that  the  legislative 
power  of  the  national  government  should  be  derived 
from  the  people  inhabiting  the  several  States,  and 
by  creating  an  executive  and  a judiciary  with  an  au- 
thority commensurate  with  that  of  the  legislature, 
it  sought  to  make,  and  did  theoretically  make,  the 
national  government,  in  its  proper  sphere,  supreme 
over  the  governments  of  the  States. 

With  respect  to  the  element  of  stability,  as  de- 
pending on  the  length  of  the  tenure  of  office,  this 
system  was  far  in  advance  of  any  of  the  republican 
governments  then  existing  in  America ; for  it  con- 
templated that  the  members  of  one  branch  of  the 
legislature  should  be  elected  for  three,  and  those  of 
the  other  branch,  and  the  executive,  for  seven  years. 

If  we  compare  it  with  the  Confederation,  which  it 
was  designed  to  supersede,  we  find  greatly  enlarged 
powers,  somewhat  vaguely  defined ; the  addition  of 
distinct  and  regular  departments,  accurately  traced ; 
and  a totally  different  basis  for  the  authority  and 
origin  of  the  government  itself. 

1 The  regulation  of  commerce  cific  powers,  otherwise  provided  for 
was  not,  any  more  than  other  spe-  than  by  these  general  descriptions. 


Ch.  V.] 


THE  VIRGINIA  PLAN. 


91 


Such  was  the  nature  of  the  plan  of  government 
proposed  by  a majority  of  the  States  in  Convention, 
for  the  consideration  of  all.  It  had  to  encounter, 
in  the  first  place,  the  want  of  an  express  authority 
in  the  Convention  to  propose  any  change  in  the  fun- 
damental principle  of  the  government.  The  long 
existence  of  the  distinctions  between  the  different 
States,  the  settled  habit  of  the  people  of  the  States 
to  act  only  in  their  separate  capacities,  their  adhe- 
rence to  State  interests,  and  their  strong  prejudices 
against  all  external  power,  had  prevented  them  from 
contemplating  a government  founded  on  the  princi- 
ple of  a national  unity  among  the  populations  of 
their  different  communities.  Hence,  it  is  not  sur- 
prising that  men,  who  came  to  the  Convention  with- 
out express  powers  which  they  could  consider  as 
authority  for  the  introduction  of  so  novel  a princi- 
ple, should  have  been  unwilling  to  agree  to  the  for- 
mation of  a government,  that  was  to  involve  the 
surrender  of  a large  portion  of  the  sovereignty  of 
each  State.  They  felt  a real  apprehension  lest  their 
separate  States  should  be  lost  in  the  comprehensive 
national  power  which  seemed  to  be  foreshadowed  by 
the  plans  at  which  others  were  aiming.  It  seemed 
to  them  that  the  consequence,  the  power,  and  even 
the  existence,  of  their  separate  political  corporations, 
were  about  to  be  absorbed  into  the  nation. 

In  the  second  place,  the  mode  of  reconciling  the 
co-ordinate  existence  of  a national  and  a State  sov- 
ereignty had  undergone  no  public  discussion.  At 
the  same  time,  almost  all  the  evils,  the  inconven- 
iences, and  the  dangers  which  the  country  had  en- 


92 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


countered  since  the  peace  of  1783,  had  sprung  from 
the  impossibility  of  uniting  the  action  of  the  States 
upon  measures  of  general  concern.  For  this  reason, 
there  were  men  in  the  Convention  who  at  one  time 
doubted  the  utility  of  preserving  the  States,  and  who 
naturally  considered  that  the  only  mode  in  which  a 
durable  and  sufficient  government  could  be  estab- 
lished, was  to  fuse  all  the  elements  of  political  power 
into  a single  mass.  To  those  who  had  this  feeling, 
the  Virginia  plan  was  as  little  acceptable  as  it  was, 
for  the  opposite  reason,  to  others. 

It  was,  however,  from  the  party  opposed  to  any 
departure  from  the  principle  of  the  Confederation, 
that  the  first  and  the  chief  opposition  came.  The 
delegations  of  Connecticut,  New  York  (with  the  ex- 
ception of  Hamilton),  New  Jersey,  and  Delaware, 
and  one  prominent  member  from  Maryland,  — Lu- 
ther Martin,  — preferred  to  add  a few  new  powers  to 
the  existing  system,  rather  than  to  substitute  a na- 
tional government.  They  were  determined  not  to 
surrender  the  present  equality  of  suffrage  in  Con- 
gress ; and  accordingly  the  members  from  the  State 
of  New  Jersey  brought  forward  a plan  of  a purely 
“ federal  ” character.1 

This  plan  proposed  that  the  Articles  of  Confed- 
eration should  be  so  revised  and  enlarged  as  to  give 
to  Congress  certain  additional  powers,  including  a 
power  to  levy  duties  for  purposes  of  revenue  and 
the  regulation  of  commerce.  But  it  left  the  con- 

1 This,  together  with  the  Vir-  second  committee  of  the  whole, 
ginia  plan,  which  was  recommitted  June  15th. 
along  with  it,  was  referred  to  a 


Ch.  V.] 


THE  NEW  JERSEY  PLAN 


93 


stitution  of  Congress  as  it  was  under  the  Confed- 
eration, and  left  also  the  old  mode  of  discharging 
the  national  expenses,  by  means  of  requisitions  on 
the  States,  changing  only  the  rule  of  proportion 
from  the  basis  of  real  property  to  that  of  free  popu- 
lation. It  contemplated  an  executive,  to  be  elected 
by  Congress,  and  a supreme  judiciary  to  be  appointed 
by  the  executive ; leaving  to  the  judiciaries  of  the 
States  original  cognizance  of  all  cases  arising  under 
the  laws  of  the  Union,  and  confining  the  national 
judiciary  to  an  appellate  jurisdiction,  except  in  the 
cases  of  impeachments  of  national  officers.  It  pro- 
posed to  secure  obedience  to  the  acts  and  regulations 
of  Congress,  by  making  them  the  supreme  law  of 
the  States,  and  by  authorizing  the  executive  to  em- 
ploy the  power  of  the  confederated  States  against 
any  State  or  body  of  men  who  might  oppose  or  pre- 
vent their  being  carried  into  execution. 

The  mover  of  this  system1  founded  his  opposition 
to  the  plan  framed  by  the  committee  of  the  whole 
chiefly  upon  the  want  of  power  in  the  Convention 
to  propose  a change  in  the  principle  of  the  existing 
government.  He  argued,  with  much  acuteness,  that 
there  Avas  either  a present  confederacy  of  the  States, 
or  there  Avas  not ; that  if  there  Avas,  it  Avas  one 
founded  on  the  equal  sovereignties  of  the  States, 
and  that  it  could  be  changed  only  by  the  consent  of 
all ; that  as  some  of  the  States  Avould  not  consent  to 
the  change  proposed,  it  Avas  necessary  to  adhere  to 
the  system  of  representation  by  States ; and  that  a 


1 AVilliam  Patterson  of  New  Jersey. 


94 


FORMATION  OF  THE  CONSTITUTION.  |Book  IV. 


system  of  representation  of  the  people  of  the  States 
was  inconsistent  with  the  preservation  of  the  State 
sovereignties.  The  answer  made  to  this  objection 
was,  that  although  the  States,  in  appointing  their 
delegates  to  the  Convention,  had  given  them  no  ex- 
press authority  to  change  the  principle  of  the  exist- 
ing constitution,  yet  that  the  Convention  had  been 
assembled  at  a great  crisis  in  the  affairs  of  the  Un- 
ion, as  an  experiment,  to  remedy  the  evils  under 
which  the  country  had  long  suffered  from  the  de- 
fects of  its  general  government ; that  whatever  was 
necessary  to  the  safety  of  the  republic  must,  under 
such  circumstances,  be  considered  as  within  the  im- 
plied powers  of  the  Convention,  especially  as  it  was 
proposed  to  do  nothing  more  than  to  recommend 
the  changes  which  might  be  found  necessary;  and 
that  although  all  might  not  assent  to  the  changes 
that  would  be  proposed,  the  dissentient  States  could 
not  require  the  others  to  remain  under  a system  that 
had  completely  failed,  when  they  could  form  a new 
confederacy  upon  wiser  and.  better  principles.1 

It  was  at  this  point  that  Hamilton  interposed, 
with  the  suggestion  of  views  and  opinions  that  have 
sometimes  subjected  him,  unjustly,  to  the  charge  of 
anti-republican  and  monarchical  tendencies  and  de- 
signs. These  views  and  opinions  should  be  care- 
fully considered  by  the  reader,  not  only  in  justice 
to  this  great  statesman,  but  because  they  had  much 
influence,  in  an  indirect  manner,  in  producing  the 

1 See  tlie  remarks  of  Wilson,  en  in  Madison,  Elliot,  V.  195- 
Pinckney,  and  Randolph,  as  giv-  198. 


Ch.  V.] 


HAMILTON’S  VIEWS. 


95 


form  and  tone  which  the  Constitution  finally  re- 
ceived. 

It  should  be  recollected,  in  making  this  examina- 
tion, that,  so  far  as  there  was  at  this  time  a distinct 
issue  before  the  Convention,  it  was  presented  by  the 
New  Jersey  plan  of  a system  that  would  leave  the 
sovereignties  of  the  States  almost  wholly  undimin- 
ished, on  the  one  hand,  and  on  the  other  by  the  Vir- 
ginia plan  of  a partial  but  as  yet  undefined  surrender 
of  powers  to  a general  government.  The  construc- 
tion of  this  proposed  government,  and  the  powers 
that  it  ought  to  possess,  were  the  points  which 
Hamilton  now  dealt  with,  in  the  first  address  which 
he  made  to  the  committee. 

He  has  left  it  on  record,  that  the  views  which 
he  announced  on  this  occasion  were  rested  upon 
the  three  following  positions : — 1.  That  the  politi- 
cal principles  of  the  people  of  this  country  would 
endure  nothing  but  a republican  government.  2. 
That,  in  the  actual  situation  of  the  country,  it  was 
of  itself  right  and  proper  that  the  republican  theory 
should  have  a full  and  fair  trial.  3.  That  to  such 
a trial  it  was  essential  that  the  government  should 
be  so  constructed  as  to  give  it  all  the  energy  and 
stability  reconcilable  with  the  principles  of  that  re- 
publican theory.1  The  opinions  advanced  by  Ham- 
ilton at  the  stage  of  the  proceedings  which  we  are 
now  examining  must  always  be  considered  with  ref- 
erence to  the  principles  which  guided  him,  in  order 

1 See  his  letter  of  September  16,  ering;  first  published  in  Niles’s 
1803,  addressed  to  Timothy  Pick-  Register,  November  7,  1812. 


96 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


that  a right  estimate  may  be  formed  of  their  influ- 
ence on  the  final  result  of  the  issue  then  pending. 

After  disposing  of  the  objection  that  the  Conven- 
tion had  no  power  to  propose  a plan  of  government 
differing  from  the  principle  of  the  Confederation,  he 
proceeded  to  say,  that  there  were  three  lines  of  con- 
duct before  them : first,  to  make  a league  offensive 
and  defensive  between  the  States,  treaties  of  com- 
merce, and  an  apportionment  of  the  public  debt;  sec- 
ondly, to  amend  the  present  Confederation  by  adding 
such  powers  as  the  public  mind  seemed  ready  to 
grant;  thirdly,  to  form  a new  government,  which 
should  pervade  the  whole,  with  decisive  powers  and 
a complete  sovereignty.  The  practicability  of  the 
last  course,  and  the  mode  in  which  the  object  should 
be  accomplished,  were  the  important  and  the  only 
real  questions  before  them.  But  the  solution  of 
those  questions  involved  an  inquiry  into  the  prin- 
ciples of  civil  obedience,  which  are  the  great  and 
essential  supports  of  all  government. 

The  first  of  these  principles,  he  said,  is  an  active 
and  constant  interest  in  the  support  of  a govern- 
ment. This  principle  -did  not  then  exist  in  the 
States,  in  favor  of  the  general  government.  They 
constantly  pursued  their  own  particular  interests, 
which  were  adverse  to  those  of  the  whole.  The 
second  principle  is  a conviction  of  the  utility  and 
necessity  of  a government.  As  the  general  govern- 
ment might  be  dissolved  and  yet  the  order  of  society 
would  continue,  — so  that  many  of  the  purposes  of 
government  would  still  be  attainable,  to  a consider- 


Ch.  V.] 


HAMILTON’S  VIEWS. 


97 


able  degree,  within  the  States  themselves,  — a con- 
viction of  the  utility  or  the  necessity  of  a general 
government  could  not  at  that  time  be  considered  as 
an  active  principle  among  the  people  of  the  States. 
The  third  principle  is  an  habitual  sense  of  obligation ; 
and  here  the  whole  force  of  the  tie  was  on  the  side 
of  State  government.  Its  sovereignty  was  immedi- 
ately before  the  eyes  of  the  people ; its  protection 
they  immediately  enjoyed  ; by  its  hand,  private  jus- 
tice was  administered.  In  the  existing  state  of 
things,  the  central  government  was  known  only  by 
its  unwelcome  demands  of  money  or  service. 

The  fourth  principle  on  which  government  must 
rely  is  force ; by  which  he  meant  both  the  coercion 
of  laws  and  the  coercion  of  arms.  But  as  to  the 
general  government,  the  coercion  of  laws  did  not 
exist ; and  to  employ  the  force  of  arms  on  the  States 
would  amount  to  a war  between  the  parties  to  the 
confederacy.  The  fifth  principle  was  influence ; by 
which  he  did  not  mean  corruption,  but  a dispensa- 
tion of  those  regular  honors  and  just  emoluments 
which  produce  an  attachment  to  government.  Al- 
most the  whole  weight  of  these  was  then  on  the 
side  of  the  States,  and  must  remain  so  in  any  mere 
confederacy,  rendering  it  in  its  very  nature  feeble 
and  precarious. 

The  lessons  afforded  by  experience  led  to  the  evi- 
dent conclusion  that  all  federal  governments  were 
weak  and  distracted.  They  were  so,  because  the 
strong  principles  which  he  had  enumerated  oper- 
ated on  the  side  of  the  constituent  members  of  the 


VOL.  II. 


13 


98 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


confederacy,  and  against  the  central  authority.  In 
order,  therefore,  to  establish  a general  and  national 
government,  with  any  hope  of  its  duration,  they 
must  avail  themselves  of  these  principles.  They 
must  interest  the  wants  of  men  in  its  support ; they 
must  make  it  useful  and  necessary;  and  they  must 
give  it  the  means  of  coercion.  For  these  purposes, 
it  would  be  necessary  to  make  it  completely  sover- 
eign. 

The  New  Jersey  plan  certainly  would  not  pro- 
duce this  effect.  It  merely  granted  the  regulation 
of  trade  and  a more  effectual  collection  of  the  rev- 
enue, and  some  partial  duties,  which,  at  five  or  ten 
per  cent,  would  perhaps  only  amount  to  a fund  to 
discharge  the  debt  of  the  corporation.  But  there 
were  a variety  of  objects  which  must  necessarily  en- 
gage the  attention  of  a national  government.  It 
would  have  to  protect  our  rights  against  Canada 
on  the  north,  against  Spain  on  the  south,  and  the 
western  frontier  against  the  savages.  It ’would  have 
to  adopt  necessary  plans  for  the  settlement  of  the 
frontiers,  and  to  institute  the  mode  in  which  settle- 
ments and  good  governments  were  to  be  made.  Ac- 
cording to  the  New  Jersey  plan,  the  expense  of 
supporting  and  regulating  these  important  matters 
could  only  be  defrayed  by  requisitions.  This  mode 
had  already  proved,  and  would  always  be  found,  in- 
effectual. The  national  revenue  must  be  drawn 
from  commerce, — from  imposts,  taxes  on  specific  ar- 
ticles, and  even  from  exports,  which,  notwithstand- 
ing the  common  opinion,  he  held  to  he  fit  objects 
of  moderate  taxation. 


Ch.  V.] 


HAMILTON’S  VIEWS. 


99 


The  radical  objections  to  the  New  Jersey  plan  he 
held  to  be  its  equality  of  suffrage  as  between  the 
States ; its  incapacity  to  raise  forces  or  to  levy 
taxes;  and  the  organization  of  Congress,  which  it 
proposed  to  leave  unchanged.  On  the  other  hand, 
the  great  extent  of  the  country  to  be  governed,  and 
the  difficulty  of  drawing  a suitable  representation 
from  such  distances,  led  him  to  regard  the  Virginia 
plan  with  doubt  and  hesitation.  At  the  same  time, 
he  declared  that  the  system  must  be  a representa- 
tive and  republican  government.  But  representa- 
tion alone,  without  the  element  of  a permanent 
tenure  of  office  in  some  part  of  the  system,  would 
not,  as  he  believed,  answer  the  purpose.  For,  as 
society  naturally  falls  into  the  political  divisions  of 
the  few  and  the  many,  or  the  majority  and  the  mi- 
nority, some  part  of  every  good  representative  gov- 
ernment must  be  so  constituted  as  to  furnish  a 
check  to  the  mere  democratic  element.  The  Vir- 
ginia plan,  which  proposed  that  both  branches  of 
the  national  legislature  should  be  chosen  by  the 
people  of  the  States,  and  that  the  executive  should 
be  appointed  by  the  legislature,  presented  a demo- 
cratic Assembly  to  be  checked  by  a democratic  Sen- 
ate, and  both  of  them  by  a democratic  chief  magis- 
trate. To  give  a Senate  or  an  executive  thus  chosen 
an  official  term  a few  years  longer  than  that  of  the 
members  of  the  Assembly,  would  not  be  sufficient  to 
remove  them  from  the  violence  and  turbulence  of 
the  popular  passions. 

For  these  reasons,  they  must  go  as  far,  in  order  to 


100 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


attain  stability  and  permanency,  as  republican  prin- 
ciples would  admit.  He  would  therefore  have  the 
Senate  and  the  executive  hold  their  offices  during 
good  behavior.  Such  a system  would  be  strictly 
republican,  so  long  as  these  offices  remained  elective 
and  the  incumbents  were  subject  to  impeachment. 
The  term  monarchy  could  not  apply  to  such  a sys- 
tem, for  it  marks  neither  the  degree  nor  the  dura- 
tion of  power.  And  in  order  to  obviate  the  danger 
of  tumults  attending  the  election  of  an  executive 
who  should  hold  his  office  during  good  behavior, 
he  proposed  that  the  election  should  be  made  by  a 
body  of  electors,  to  be  chosen  by  the  people,  or  by 
the  legislatures  of  the  States.  The  Assembly  he 
proposed  to  have  chosen  by  the  people  of  the  States 
for  three  years.  The  legislative  'powers  of  the  gen- 
eral government  he  desired  to  have  extended  to  all 
subjects ; at  the  same  time,  he  did  not  contemplate 
the  total  abolition  of  the  State  governments,  but 
considered  them  essential,  both  as  subordinate  agents 
of  the  general  government,  and  as  the  administra- 
tors of  private  justice  among  their  own  citizens.1 

His  conclusions  were,  first,  that  it  was  impossible 
to  secure  the  Union  by  any  modification  of  a federal 
government;  secondly,  that  a league,  offensive  and 
defensive,  was  full  of  certain  evils  and  greater  dan- 
gers ; thirdly,  that  to  establish  a general  govern- 
ment would  be  very  difficult,  if  not  impracticable, 
and  liable  to  various  objections.  What  then  was  to 


1 See  the  note  at  the  end  of  this  chapter. 


Ch.  V.J 


HAMILTON’S  VIEWS. 


101 


be  done  1 He  answered,  that  they  must  balance  the 
inconveniences  and  the  dangers,  and  choose  that  sys- 
tem which  seemed  to  have  the  fewest  objections. 

The  plan  which  Hamilton  then  read  to  the  Con- 
vention, the  principal  features  of  which  have  thus 
been  stated,  was  designed  to  explain  his  views,  but 
was  not  intended  to  be  offered  as  a substitute  for 
either  of  the  two  others  then  under  consideration. 
The  issue  accordingly  remained  unchanged ; and 
that  issue  lay  between  the  Virginia  and  the  New 
Jersey  plans,  or  between  a system  of  equal  represen- 
tation by  States,  and  a system  of  proportionate  rep- 
resentation of  the  people  of  the  States.  Besides  this 
radical  difference,  the  Virginia  plan  contemplated 
two  houses,  while  the  New  Jersey  plan  proposed  to 
retain  the  existing  system  of  a single  body. 

But  in  order  that  a sound  judgment  may  be 
formed  of  the  correctness  of  Hamilton’s  opinions, 
and  of  the  useful  influence  which  they  exerted,  it 
must  be  remembered  that  there  was  an  inconsistency 
in  the  Virginia  plan,  which  he  was  then  aiming  to 
exhibit.  That  plan  Avas  a purely  national  system ; 
it  drew  both  branches  of  the  national  legislature 
from  the  people  of  the  States,  in  proportion  to  their 
numbers,  and  merely  interposed  the  legislatures  of 
the  States  as  the  electors  of  so  many  senators  as  the 
State  might  be  entitled  to  have  according  to  the 
ratio  of  representation.  Its  inconsistency  lay  in  the 
fact,  that,  while  it  would  have  created  a government 
in  which  the  proportionate  principle  of  representa- 
tion would  have  obtained  in  both  houses,  making  a 


102 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


purely  national  government,  in  which  the  States,  as 
equal  political  corporations,  could  have  exercised  no 
direct  control  over  its  legislation,  it  left  the  separate 
political  sovereignties  of  the  States  almost  wholly 
unimpaired,  taking  from  them  jurisdiction  over  such 
subjects  only  as  seemed  to  require  national  legisla- 
tion. The  operation  of  such  a system  must  necessa- 
rily have  involved  perpetual  conflicts  between  na- 
tional and  State  power ; for  the  States,  possessed  of 
a large  part  of  their  original  sovereignties,  and  yet 
unable  to  exert  an  equal  control  in  either  branch  of 
Congress,  would  have  been  constantly  tempted  and 
obliged  to  exert  the  indirect  power  of  their  separate 
legislation  against  the  direct  and  democratic  force  of 
a majority  of  the  people  of  the  United  States.  To 
such  a system,  the  objection  urged  by  Hamilton,  that 
it  presented  a democratic  House  checked  by  a demo- 
cratic Senate,  was  strikingly  applicable.  This  objec- 
tion, it  is  true,  was  not  presented  by  him  as  a reason 
for  admitting  the  States  to  a direct  and  equal  rep- 
resentation in  the  government;  he  employed  it  to 
enforce  the  expediency  of  giving  to  the  Senate  a dif- 
ferent basis  from  that  of  the  House,  and  one  farther 
removed  from  popular  influences.  But  when,  at  a 
subsequent  period,  the  first  great  compromise  of  the 
Constitution  — that  between  a purely  national  and 
a purely  federal  system  — took  place  by  the  admis- 
sion of  the  States  to  an  equal  representation  in  the 
Senate,  the  force  of  Hamilton’s  reasoning  was  felt, 
and  the  necessity  for  a check  as  between  the  two 
houses,  founded  on  a difference  of  origin,  which  he 


Ch.  V.] 


HAMILTON’S  VIEWS. 


103 


had  so  strenuously  maintained,  both  facilitated  and 
hastened  the  concession  to  the  demands  of  the 
smaller  States. 

At  present,  Hamilton’s  object,  in  the  discussions 
which  we  are  now  considering,  was  to  show  that,  if 
the  government  was  to  be  purely  national,  — as  was 
the  theory  of  the  Virginia  plan,  and  as  he  undoubt- 
edly preferred,  — it  must  be  consistent  with  that 
theory  and  with  the  situation  in  which  its  adoption 
would  leave  the  country.  It  must  introduce  through 
the  Senate  a real  check  upon  the  democratic  power 
that  would  act  through  the  House,  by  a different  mode 
of  election  and  a permanent  tenure  of  office ; and  in 
order  that  the  States  might  not  be  in  a situation  to 
resist  the  measures  of  a government  designed  to  be 
national  and  supreme,  that  government  must  possess 
complete  and  universal  legislative  power. 

Surely  it  can  be  no  impeachment  of  the  wisdom 
or  the  statesmanship  of  this  great  man,  that,  at  a 
time  when  a large  majority  of  the  Convention  were 
seeking  to  establish  a purely  national  system,  founded 
on  a proportionate  representation  of  the  people  of 
the  States,  he  should  have  pointed  out  the  inconsist- 
encies of  such  a plan,  and  should  have  endeavored 
to  bring  it  into  a nearer  conformity  with  the  theory 
which  so  many  of  the  members  and  so  many  of  the 
States  had  determined  to  adopt.  It  seems  rather  to 
be  a proof  of  the  deep  sagacity  which  had  always 
marked  his  opinions  and  his  conduct,  that  he  should 
have  foreseen  the  inevitable  collisions  between  the 
powers  of  a national  government  thus  constituted 


104 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and  the  powers  of  the  States.  The  whole  experience 
of  the  past  had  taught  him  to  anticipate  such  con- 
flicts, and  the  theory  of  a purely  national  govern- 
ment, when  applied  by  the  arrangement  now  pro- 
posed, rendered  it  certain  that  these  conflicts  must 
continue  and  increase.  That  theory  could  only  be 
put  in  practice  by  transferring  the  whole  legislative 
powers  of  the  people  of  the  States  to  the  national 
government.  This  he  would  have  preferred;  and 
in  this,  looking  from  the  point  of  view  at  which  he 
then  stood,  and  considering  the  actual  position  of 
the  subject,  he  was  undoubtedly  right.1 

For  it  is  not  to  be  forgotten,  that  after  the  votes 
which  had  been  taken,  and  after  the  position  as- 
sumed by  the  States  opposed  to  anything  but  a 
federal  plan,  the  choice  seemed  to  lie  between  a 
purely  national  and  a purely  federal  system;  that 
the  indications  then  were,  that  the  Virginia  plan 
would  be  adopted ; and  that  we  owe  the  present 
compound  character  of  the  Constitution,  as  a gov- 
ernment partly  national  and  partly  federal,  not  to 
the  mere  theories  proposed  on  either  side,  but  to  the 
fortunate  results  of  a wise  compromise,  made  neces- 
sary by  the  collision  between  the  opposite  purposes 
and  desires  of  different  classes  of  the  States. 

At  the  time  when  Hamilton  laid  his  views  before 
the  Convention,  there  were  two  parties  in  that  body, 
which  were  coming  gradually  to  a struggle,  not  yet 
openly  avowed,  between  the  larger  and  the  smaller 


1 See  the  note  at  the  end  of  this  chapter. 


Ch.  Y-I  popular  and  state  representation.  105 

States,  on  the  fundamental  principle  of  the  govern- 
ment. The  principal  question  at  stake  was  whether 
there  should  be  any  national  popular  representation 
at  all.  While  the  Virginia  plan  carried  a popular 
representation  into  both  branches  of  the  legislature, 
the  New  Jersey  plan  excluded  it,  and  confined  the 
system  to  a representation  of  States,  in  a single  body. 
The  larger  and  more  populous  States  adhered  to  the 
former  of  these  two  systems,  because  it  involved  the 
only  principle  upon  which  they  believed  they  could 
form  a new  Union,  or  enter  into  new  relations  with 
the  smaller  members  of  the  confederacy;  while,  on 
the  other  hand,  the  smaller  members  felt  that  self- 
preservation  was  for  them  involved  in  adhering  to 
the  old  principle  of  the  Confederation.  Notwith- 
standing the  defects  and  imperfections  of  the  Vir- 
ginia plan,  it  was  deemed  necessary  by  the  majority 
of  the  Convention  to  insist  upon  it,  until  the  princi- 
ple of  popular  representation  should  be  conceded  by 
all,  as  proper  to  exist  in  some  part  of  the  govern- 
ment ; for  an  admission  that  it  was  theoretically 
incorrect  in  its  application  to  either  branch  of  the 
proposed  legislature  would  have  applied  equally  to 
the  other  branch ; and  the  admission  that  would 
have  been  involved  in  the  acceptance  of  Hamilton’s 
propositions,  namely,  that  in  a purely  national  sys- 
tem there  must  be  a Senate  permanently  in  office, 
and  that  the  legislative  powers  of  the  States  must  be 
mainly  surrendered,  would  have  tended  only  to  con- 
firm the  opposition  and  to  swell  the  numbers  of  the 

minority.  The  contest  went  on,  therefore,  as  it  had 
u 


VOL.  II. 


106 


FORMATION  OF  THE  CONSTITUTION.  [Boom  IV. 


begun,  between  the  opposite  principles  of  popular 
and  State  representation,  until  it  resulted  in  an  ab- 
solute difference,  requiring  mutual  concessions,  or 
an  abandonment  of  the  effort  to  form  a Constitution. 

On  the  day  following  that  on  which  Hamilton 
had  addressed  the  committee,  Mr.  Madison  entered 
into  an  elaborate  examination  of  the  plan  proposed 
by  the  minority.  The  previous  Congressional  expe- 
rience of  this  distinguished  and  sagacious  man  had 
well  qualified  him  to  detect  the  imperfections  of  a 
system  calculated  to  perpetuate  the  evils  under 
which  the  country  had  long  suffered.  His  object 
now  was  to  show  that  a Union  founded  on  the  prin- 
ciple of  the  Confederation,  and  containing  no  dimi- 
nution of  the  existing  powers  of  the  States,  could 
not  accomplish  even  the  principal  objects  of  a gen- 
eral government.  It  "would  not,  he  observed,  in  the 
first  place,  prevent  the  States  from  violating,  as  they 
had  all  along  violated,  the  obligations  of  treaties  with 
foreign  powers ; for  it  left  them  as  uncontrolled  as 
they  had  always  been.  It  would  not  restrain  the 
States  from  encroaching  on  the  federal  authority,  or 
prevent  breaches  of  the  federal  articles.  It  would 
not  secure  that  equality  of  privileges  between  the 
citizens  of  different  States,  and  that  impartial  admin- 
istration of  justice,  the  want  of  which  had  threatened 
both  the  harmony  and  the  peace  of  the  Union.  It 
would  not  secure  the  republican  theory,  which  vested 
the  right  and  the  power  of  government  in  the  major- 
ity ; as  the  case  of  Massachusetts  then  demonstrated. 
It  would  not  secure  the  Union  against  the  influence 


Ch.  V.] 


MADISON’S  VIEWS. 


107 


of  foreign  powers  over  its  members.  Whatever  might 
have  been  the  case  with  ours,  all  former  confederacies 
had  exhibited  the  effects  of  intrigues  practised  upon 
them  by  other  nations ; and  as  the  New  Jersey  plan 
gave  to  the  general  councils  no  negative  on  the  will 
of  the  particular  States,  it  left  us  exposed  to  the 
same  pernicious  machinations. 

He  begged  the  smaller  States,  which  had  brought 
forward  this  plan,  to  consider  in  what  position  its 
adoption  Avould  leave  them.  They  would  be  subject 
to  the  whole  burden  of  maintaining  their  delegates 
in  Congress.  They  and  they  alone  would  feel  the 
power  of  coercion  on  which  the  efficacy  of  this  plan 
depended,  for  the  larger  States  would  be  too  power- 
ful for  its  exercise.  On  the  other  hand,  if  the  ob- 
stinate adherence  of  the  smaller  States  to  an  inad- 
missible system  should  prevent  the  adoption  of  any, 
the  Union  must  be  dissolved,  and  the  States  must 
remain  individually  independent  and  sovereign,  or 
two  or  more  new  confederacies  must  be  formed.  In 
the  first  event,  Avould  the  small  States  be  more  se- 
cure against  the  ambition  and  power  of  their  larger 
neighbors,  than  they  would  be  under  a general  gov- 
ernment pervading  with  equal  energy  every  part  of 
the  empire,  and  having  an  equal  interest  in  protect- 
ing every  part  against  every  other  part  ? In  the  sec- 
ond event,  could  the  smaller  States  expect  that  their 
larger  neighbors  would  unite  with  them  on  the  prin- 
ciple of  the  present  confederacy,  or  that  they  would 
exact  less  severe  concessions  than  were  proposed  iij 
the  Virginia  scheme  1 


108 


FORMATION  OF  TIIE  CONSTITUTION.  [Book  IV. 


The  great  difficulty,  he  continued,  lay  in  the  affair 
of  representation ; and  if  that  could  be  adjusted,  all 
others  would  be  surmountable.  It  was  admitted  by 
both  of  the  gentlemen  from  New  Jersey,1 2  that  it 
would  not  be  just  to  allow  Virginia,  which  was  six- 
teen times  as  large  as  Delaware,  an  equal  vote  only. 
Their  language  was,  that  it  would  not  be  safe  for 
Delaware  to  alloAV  Virginia  sixteen  times  as  many 
votes.  Their  expedient  was,  that  all  the  States 
should  be  thrown  into  one  mass,  and  a new  parti- 
tion be  made  into  thirteen  equal  parts.  Would 
such  a scheme  be  practicable  1 The  dissimilarities 
in  the  rules  of  property,  as  well  as  in  the  man- 
ners, habits,  and  prejudices  of  the  different  States, 
amounted  to  a prohibition  of  the  attempt.  It  had 
been  impossible  for  the  power  of  one  of  the  most 
absolute  princes  in  Europe,9  directed  by  the  wisdom 
of  one  of  the  most  enlightened  and  patriotic  minis- 
ters that  any  age  had  produced,3  to  equalize  in  some 
points  only  the  different  usages  and  regulations  of 
the  different  provinces.  But,  admitting  a general 
amalgamation  and  repartition  of  the  States  to  be 
practicable,  and  the  danger  apprehended  by  the 
smaller  States  from  a proportional  representation  to 
be  real,  would  not  their  special  and  voluntary  coa- 
lition with  their  neighbors  be  less  inconvenient  to 
the  whole  community  and  equally  effectual  for  their 
own  safety!4  If  New  Jersey  or  Delaware  conceived 

1 Mr.  Brearly  and  Mr.  Patter-  3 Nccker. 

sSn.  4 Mr.  Patterson  had  said,  that,  if 

2 Louis  XVI.  they  were  to  depart  from  the  prin- 


Ch.  V.] 


VIRGINIA  PLAN  REPORTED. 


109 


that  an  advantage  would  accrue  to  them  from  an 
equalization  of  the  States,  in  which  case  they  would 
necessarily  form  a junction  with  their  neighbors, 
why  might  not  this  end  be  attained  by  leaving  them 
at  liberty  to  form  such  a junction  whenever  they 
pleased  ? And  why  should  they  wish  to  obtrude  a 
like  arrangement  on  all  the  States,  when  it  was,  to 
say  the  least,  extremely  difficult,  and  would  be  ob- 
noxious to  many  of  the  States,  — and  when  neither 
the  inconvenience  nor  the  benefit  of  the  expedient 
to  themselves  would  be  lessened  by  confining  it  to 
themselves1?  The  prospect  of  many  new  States  to 
the  westward  was  another  consideration  of  impor- 
tance. If  they  should  come  into  the  Union  at  all, 
they  would  come  when  they  contained  but  few  in- 
habitants. If  they  should  be  entitled  to  vote  ac- 
cording to  their  proportion  of  inhabitants,  all  would 
be  right  and  safe.  Let  them  have  an  equal  vote, 
and  a more  objectionable  minority  than  ever  might 
give  law  to  the  whole.1 

At  the  close  of  Mr.  Madison’s  remarks,  the  com- 
mittee decided,  by  a vote  of  seven  States  against 
three,  one  State  being  divided,  to  report  the  Vir- 
ginia plan  to  the  Convention.  The  delegation  of 
New  York  (with  the  exception  of  Hamilton),  and 
those  of  New  Jersey  and  Delaware,  constituted  the 
negative  votes.  The  vote  of  Maryland  was  divided 

ciple  of  equal  sovereignty,  the  only  Let  it  be  tried,  and  they  would  see 
expedient  that  would  cure  the  diffi-  whether  Massachusetts,  Pennsylva- 
culty  would  be  to  throw  the  States  nia,  and  Virginia  would  accede  to 
into  hotehpot.  To  say  that  this  was  it.  (Madison,  Elliot,  V.  194.) 
impracticable,  would  not  riiake  it  so.  1 Elliot,  V.  20G  - 21 1. 


110 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


by  Luther  Martin,  who-  had  constantly  acted  with 
the  minority.  The  vote  of  Connecticut  was  given 
for  the  report,  but  she  was  not  long  to  remain  on 
that  side  of  the  question.1 


1 Madison,  Elliot,  V.  212.  Jour-  whole  were  discharged,  on  the  10th 
nal,  Elliot,  I.  180.  This  vote  was  of  June, 
taken,  and  the  committee  of  the 


NOTE  ON  THE  OPINIONS  OF  HAMILTON. 

The  idea  has  been  more  or  less  entertained,  from  the  time  of  the  Con- 
vention to  the  present  day,  that  Hamilton  desired  the  establishment  of  a 
monarchical  government.  This  impression  has  arisen  partly  from  the  the- 
oretical opinions  on  government  which  he  undoubtedly  held,  and  which 
he  expressed  with  entire  freedom  in  the  course  of  the  debate,  of  which  an 
account  has  been  given  in  the  previous  chapter ; and  partly  from  the  na- 
ture of  some  of  his  propositions,  especially  that  for  an  executive  during 
good  behavior,  which  has  been  sometimes  assumed  to  have  been  the  same 
thing  as  an  executive  for  life.  I believe  that  the  imputation  of  a purpose 
on  his  part  to  bring  about  the  establishment  of  any  system  not  essentially 
republican  in  its  spirit  and  forms,  is  unfounded  and  unjust,  and  that  it  can 
be  shown  to  be  so. 

Mr.  Luther  Martin,  in  his  celebrated  letter  or  report  to  the  legislature 
of  Maryland  on  the  doings  of  the  Federal  Convention,  referred  to  a dis- 
tinct monarchical  party  in  that  body,  “ whose  object  and  wish,”  he  said, 
“ it  was  to  abolish  and  annihilate  all  State  governments,  and  to  bring  for- 
ward one  general  government  over  this  whole  continent,  of  a monarchical 
nature,  under  certain  restrictions  and  limitations.  Those  who  openly 
avowed  this  sentiment,”  he  said,  “were,  it  is  true,  but  few;  yet  it  is 
equally  true,  that  there  was  a considerable  number  who  did  not  openly 
avow  it,  who  were,  by  myself  and  many  others  of  the  Convention,  consid- 
ered as  being  in  reality  favorers  of  that  sentiment  and  acting  upon  those 
principles,  covertly  endeavoring  to  carry  into  effect  what  they  well  knew 
openly  and  avowedly  could  not  be  accomplished.”  He  then  goes  on  to 
say,  that  there  was  a second  party,  who  were  “ not  for  the  abolition  of  the 
State  governments,  nor  for  the  introduction  of  a monarchical  government 


Ch.  V.j 


THE  OPINIONS  OF  HAMILTON. 


Ill 


under  any  form ; but  they  wished  to  establish  such  a system  as  could  give 
their  own  States  undue  power  and  influence,  in  the  government,  over  the 
other  States.”  “ A third  party,”  he  adds,  “ was  what  I considered  truly 
federal  and  republican  ” ; that  is  to  say,  it  consisted  of  the  delegations  from 
Connecticut,  New  York,  New  Jersey,  Delaware,  and  in  part  from  Mary- 
land, and  of  some  members  from  other  States,  who  were  in  favor  of  a fed- 
eral equality  and  the  old  principle  of  the  Confederation. 

Upon  this  rule  of  classification,  the  test  of  republicanism  was  to  be 
found  in  the  views  entertained  by  members  upon  the  question  whether 
the  State  governments  ought  to  be  abolished.  Mr.  Martin,  indeed,  went 
further,  and  considered  those  only  as  truly  republican,  who  were  in  favor 
of  a purely  federal  system,  and  opposed  to  any  plan  of  popular  represen- 
tation. Now  it  is  quite  clear,  that  the  abolition  of  the  State  governments, 
so  far  as  that  subject  was  considered  at  all,  and  in  the  sense  in  which  it 
was  at  any  time  mentioned,  did  not  necessarily  lead  to  monarchy  as  a 
conclusion.  The  reduction  of  the  State  governments  to  local  corpora- 
tions and  to  the  position  of  subordinate  agents  of  the  central  government, 
was  considered  by  some  as  a necessary  consequence  of  a national  repre- 
sentative government.  This  arose  from  the  circumstance  that  a union  of 
federal  and  national  representation  had  nowhere  been  witnessed,  and 
had  not  therefore  been  considered.  I have  already  suggested,  in  the  text, 
that,  if  the  framers  of  the  Constitution  had  gone  on  to  the  adoption  of  a 
pure  system  of  popular  and  proportional  representation  in  all  the  branches 
of  the  government,  they  must  inevitably  have  bestowed  upon  that  govern- 
ment full  legislative  power  over  all  subjects ; otherwise,  they  would  have 
left  the  States,  possessed  of  the  sovereign  powers  of  a distinct  political 
organization,  to  contend  with  the  national  government  by  adverse  legis- 
lation. The  subsequent  expedient  of  a direct  and  equal  representation 
of  the  States  in  one  branch  of  the  government  has  in  reality,  to  a great 
degree,  disarmed  State  jealousy  and  opposition,  by  giving  to  the  States  as 
political  bodies  an  equal  voice  in  the  check  established  by  the  branch  in 
which  they  are  represented. 

So  that  to  argue,  that,  because  there  were  men  who  saw  the  necessity  for 
making  a purely  national  or  proportionate  system  of  popular  representa- 
tion consistent  with  the  situation  in  which  it  would  place  the  country, 
they  were  therefore  in  favor  of  a monarchical  system,  was  to  argue  from 
premises  to  a conclusion  in  no  way  connected.  Had  such  a plan  been  car- 
ried out,  it  could  have  been,  and  must  have  been,  purely  republican  in  all 
its  details ; and  it  would  have  been  liable  to  the  reproach  of  being  monar- 
chical in  no  other  sense  than  any  system  which  did  not  yield  the  point  of 
a full  federal  equality,  for  \yhich  Mr.  Martin  and  his  party  contended. 


112  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


Undoubtedly,  Hamilton,  as  I have  said,  was  in  favor  of  bestowing  upon 
the  national  government  full  power  to  legislate  upon  all  subjects ; and  to 
this  extent,  and  in  this  sense,  he  proposed  the  abolition  of  the  State  gov- 
ernments. But  any  one  who  will  attend  carefully  to  the  course  of  his 
argument,  — imperfectly  as  it  has  been  preserved,  — will  find  that  it  em- 
braces the  following  course  of  reasoning.  All  federal  governments  are 
weak  and  distracted.  In  order  to  avoid  the  evils  incident  to  that  form, 
the  government  of  the  American  Union  must  be  a national  representative 
system.  But  no  such  system  can  be  successful,  in  the  actual  situation  of 
this  country,  unless  it  is  endowed  with  all  the  principles  and  means  of  in- 
fluence and  power  which  are  the  proper  supports  of  government.  It 
must  therefore  be  made  completely  sovereign,  and  State  power,  as  a sep- 
arate legislative  authority,  must  be  annihilated ; otherwise,  the  States  will 
be  not  only  able,  but  will  be  constantly  tempted,  to  exert  their  own  au- 
thority against  the  authority  of  the  nation.  I have  already  expressed  the 
opinion,  that  in  this  view  of  the  subject,  assuming  that  the  States  were 
not  to  be  admitted  to  an  equal  representation  as  political  corporations  in 
any  branch  of  the  government,  — as  the  framers  and  friends  of  the  Vir- 
ginia plan  had  thus  far  contended,  — Hamilton  was  right.  I believe  that 
a constitution,  in  which  the  States  had  not  been  placed  upon  an  equal 
footing  in  one  branch  of  the  legislative  power,  and  under  which  the  State 
sovereignties  had  been  left  as  they  were  left  by  the  system  actually  adopt- 
ed, if  it  could  have  been  ratified  by  all  the  States,  could  not  have  endured 
to  our  times.  Yet  the  fortunate  result  of  the  mixed  system  that  is  em- 
braced in  the  Constitution  of  the  United  States,  is  the  product,  not  simply 
of  either  of  the  theories  of  a national  or  a federal  government,  but  of  a 
compromise  between  the  two. 

But  the  charge  of  anti-republican  tendencies  or  designs  has  been  most 
often  urged  against  Hamilton,  on  account  of  his  theoretical  opinions  con- 
cerning the  comparative  merits  of  different  governments,  and  of  certain 
features  of  the  plan  of  a constitution  which  he  read  to  the  Convention. 
With  respect  to  these  points,  I shall  state  the  results  of  a very  careful 
examination  which  I have  made  of  all  the  sources  of  information  as  to  the 
views  and  opinions  which  he  expressed  or  entertained.  Mr.  Madison  has 
given  us  what  he  probably  intended  as  a full  report  of  at  least  the  sub- 
stance of  Hamilton’s  great  'speech  addressed  to  the  committee  of  the 
whole,  and  has  informed  us  that  his  report  was  submitted  to  Colonel 
Hamilton,  who  approved  it,  with  a few  verbal  changes.  But  how  meagre 
a report,  which  fills  but  six  pages  in  the  octavo  edition  of  Mr.  Madison’s 
“ Debates,”  must  have  been  in  comparison  with  the  speech  actually  made 
by  Hamilton,  will  occur  to  every  reader  who  notices  the  fact  that  the 


Ch.  V.] 


THE  OPINIONS  OF  HAMILTON. 


113 


speech  occupied  the  entire  session  of  one  day  (June  18),  and  who  exam- 
ines the  brief  from  which  he  spoke,  and  which  is  still  extant.  (Hamil- 
ton’s Works,  II.  409.) 

He  was  an  earnest,  and  I am  inclined  to  think  a fervid  and  rapid 
speaker.  Certainly  he  spoke  from  a mind  full  of  knowledge  of  the  prin- 
ciples and  the  working  of  other  systems  of  polity,  and  possessed  of  re- 
sources which  have  never  been  excelled  in  any  statesman  who  has  been 
called  to  aid  in  the  work  of  creating  a government.  The  topics  set  down 
in  his  brief  exhibit  a very  wide  range  of  thought,  enriched  by  copious  il- 
lustrations from  the  history  and  experience  of  other  countries,  and  from 
the  views  of  the  most  important  writers  on  government ; while  the  whole 
argument  bears  logically  and  closely  upon  the  actual  situation  of  our  con- 
federacy and  upon  the  questions  at  issue.  It  is  not  probable,  therefore, 
that  Mr.  Madison’s  report  gives  us  an  adequate  idea  of  the  speech,  or 
fully  exhibits  its  reasoning.  I have  collated  it,  sentence  by  sentence,  with 
the  report  in  Judge  Yates’s  Minutes,  and  with  Hamilton’s  own  brief,  and 
have  prepared  for  my  own  use  a draft  containing  the  substance  of  what 
these  three  sources  can  give  us.  The  results  may  be  thus  given : — 

1 . That  Hamilton,  in  stating  his  views  of  the  theoretical  value  of  differ- 
ent systems  of  government,  frankly  expressed  the  opinion  that  the  British 
constitution  was  the  best  form  which  the  world  had  then  produced ; — cit- 
ing the  praise  bestowed  upon  it  by  Necker,  that  it  is  the  only  government 
“ which  unites  public  strength  with  individual  security.” 

2.  That,  with  equal  clearness,  he  stated  it  as  his  opinion  that  none  but  a 
republican  form  could  be  attempted  in  this  country,  or  would  be  adapted 
to  our  situation. 

3.  That  he  proposed  to  look  to  the  British  Constitution  for  nothing  but 
those  elements  of  stability  and  permanency  which  a republican  system 
requires,  and  which  may  be  incorporated  into  it  without  changing  its 
characteristic  principles. 

The  only  question  that  remains,  in  order  to  form  a judgment  of  his 
purposes,  is,  whether  there  was  anything  in  the  plan  of  a constitution 
drawn  up  by  him  that  is  inconsistent  with  the  spirit  of  republican  liberty. 
The  answer  is,  that  there  was  not.  There  is  throughout  this  plan  a con- 
stant recognition  of  the  authority  of  the  people,  as  the  source  of  all  politi- 
cal power.  It  proposed  that  the  members  of  the  Assembly  should  be 
elected  by  the  people  directly,  and  the  members  of  the  Senate  by  elec- 
tors chosen  for  the  purpose  by  the  people.  The  executive  was  in  like 
manner  to  be  chosen  by  electors,  appointed  by  the  people  or  by  the  State 
legislatures.  So  far,  therefore,  his  plan  was  as  strictly  republican,  as  is 
that  of  the  Constitution  under  which  we  are  actually  living.  But  he 
15 


VOL.  II. 


114 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


proposed  that  the  executive  and  the  senators  should  hold  their  offices 
during  good  behavior ; and  this  has  been  his  offence  against  republican- 
ism, with  those  who  measure  the  character  of  a system  by  the  frequency 
with  which  it  admits  of  rotation  in  office.  His  accusers  have  failed  to 
notice  that  he  made  his  executive  personally  responsible  for  official  mis- 
conduct, and  provided  that  both  he  and  the  senators  should  be  subject 
to  impeachment  and  to  removal  from  office.  This  was  a wide  departure 
from  the  principles  of  the  English  constitution,  and  it  constitutes  a most 
important  distinction  between  a republican  and  a monarchical  system, 
when  it  is  accompanied  by  the  fact  that  the  office  of  a ruler  or  legislator 
is  attained,  not  by  hereditary  light,  or  the  favor  of  the  crown,  but  by  the 
favor  and  choice  of  the  people. 

I have  thus  stated  the  principal  points  to  which  the  inquiries  of  the 
reader  should  be  directed  in  investigating  the  opinions  of  this  great  man, 
because  I believe  it  to  be  unjust  to  impute  to  him  any  other  than  a sin- 
cere desire  for  the  establishment  and  success  of  republican  government. 
That  he  desired  a strong  government,  that  he  was  little  disposed  to  dog- 
matize upon  abstract  theories  of  liberty,  and  that  he  trusted  more  to 
experience  than  to  hypothesis,  may  be  safely  assumed.  But  that  he 
ardently  desired  the  success  of  that  republican  freedom  which  is  founded 
on  a perfect  equality  of  rights  among  citizens,  exclusive  of  hereditary 
distinctions,  is  as  certain  as  that  he  labored  earnestly  throughout  his  life 
for  the  maxims,  the  doctrines,  and  the  systems  which  he  believed  most 
likely  to  secure  for  it  a fair  trial  and  ultimate  success.  (See  his  descrip- 
tion of  his  own  opinions,  when  writing  of  himself  as  a third  person  in 
1792;  Works,  VII.  52.) 

That  the  system  of  government  sketched  by  Hamilton  was  not  received 
by  many  of  those  who  listened  to  him  with  disapprobation  on  account  of 
what  has  since  been  supposed  its  monarchical  character,  we  may  safely 
assume,  on  the  testimony  of  Dr.  Johnson  of  Connecticut,  one  of  the  most 
moderate  men  in  the  Convention.  Contrasting  the  New  Jersey  and 
Virginia  plans,  he  is  reported  (by  Yates)  to  have  said  : “ It  appears  to 
me  that  the  Jersey  plan  has  for  its  principal  object  the  preservation  of 
the  State  governments.  So  far  it  is  a departure  from  the  plan  of  Vir- 
ginia, which,  although  it  concentrates  in  a distinct  national  government, 
is  not  totally  independent  of  that  of  the  States.  A gentleman  from 
New  York,  with  boldness  and  decision,  proposed  a system  totally  different 
from  both ; and  although  he  has  been  praised  by  everybody , he  has  been 
supported  by  none.”  (Yates’s  Minutes,  Elliot,  I.  431.) 

Even  Luther  Martin  did  not  seem  to  regard  the  objects  of  what  he  calls 
the  monarchical  party  as  being  any  worse,  or  more  dangerous  to  liberty, 


Ch.  V.] 


THE  OPINIONS  OF  HAMILTON. 


115 


than  the  projects  of  those  whom  he  represents  as  aiming  to  obtain  undue 
power  and  influence  for  their  own  States,  and  whom  at  the  same  time  he 
acquits  of  monarchical  designs  or  a desire  to  abolish  the  State  governments. 
The  truth  is,  that  nobody  had  any  improper  purposes,  or  anything  at  heart 
but  the  liberties  and  happiness  of  the  people  of  America.  We  are  not  to 
try  the  speculative  views  of  men  engaged  in  such  discussions  as  these  by 
the  charges  or  complaints  elicited  in  the  heats  of  conflicting  opinions  and 
interests,  inflamed  by  a zeal  too  warm  to  admit  the  possibility  of  its  own 
error,  or  to  perceive  the  wisdom  and  purity  of  an  opponent. 


( 


CHAPTER  VI. 


Conflict  between  the  National  and  Federal  Systems.  — Di- 
vision of  the  Legislature  into  Two  Chambers.  — Disa- 
greement of  the  States  on  the  Nature  of  Representa- 
tion in  the  Two  Branches.  — Threatened  Dissolution  of 
the  Union. 


We  are  now  approaching  a' crisis  in  the  action  of 
the  Convention,  the  history  of  which  is  full  of  instruc- 
tion for  all  succeeding  generations  of  the  American 
people.  We  have  witnessed  the  formation  of  a mi- 
nority of  the  States,  whose  bond  of  connection  was 
a common  opposition  to  the  establishment  of  what 
was  regarded  as  a “ national  ” government.  The 
structure  of  this  minority,  as  well  as  that  of  the  ma- 
jority to  which  they  were  opposed,  the  motives  and 
purposes  by  which  both  were  animated,  and  the  re- 
sults to  which  their  conflicts  finally  led,  are  extreme- 
ly important  to  be  understood  by  the  reader. 

The  relative  rank  of  the  different  States  in  point 
of  population,  at  the  time  of  the  formation  of  the 
Constitution,  was  materially  different  from  what  it 
is  at  the  present  day.  Virginia,  then  the  first  State 
in  the  Union,  is  now  the  fourth.  New  York,  now 
at  the  head  of  the  scale,  then  ranked  after  North 


Ch.  VI.]  MAJORITY  AND  MINORITY  OF  STATES.  117 


Carolina  and  Massachusetts,  which  occupied  the 
third  and  fourth  positions  in  the  first  census,  and 
which  now  occupy  respectively  the  sixth  and  tenth. 
South  Carolina,  which  then  had  a smaller  popula- 
tion than  Maryland,  now  has  a much  greater.  Geor- 
gia at  that  time  had  not  half  so  many  inhabitants  as 
New  Jersey,  but  now  has  twice  as  many. 

Great  inequalities  existed,  as  they  still  exist,  be- 
tween the  different  members  of  the  confederacy,  not 
only  in  the  actual  numbers  of  their  inhabitants,  and 
their  present  wealth,  but  in  their  capacity  and  op- 
portunity of  growth.  Virginia,  with  a population 
fourteen  times  as  large,  had  a territorial  extent  of 
thirty  times  the  size  of  Delaware.  Pennsylvania 
had  nearly  seven  times  as  many  people  as  Rhode  Isl- 
and, and  nearly  forty  times  as  much  territory.  The 
State  of  Georgia  numbered  a little  more  than  a third 
as  many  people,  but  her  territory  was  nearly  twelve 
times  as  large  as  the  territory  of  Connecticut. 

The  four  leading  States,  Virginia,  Pennsylvania, 
North  Carolina,  and  Massachusetts,  had  an  obvious 
motive  for  seeking  the  establishment  of  a govern- 
ment founded  on  a proportionate  representation  of 
their  respective  populations.  The  States  of  South 
Carolina  and  Georgia  had  generally  acted  with  them 
in  the  formation  of  the  Virginia  plan ; and  these  six 
States  thus  constituted  the  majority  by  which  the 
principle  of  what  was  called  a “ national,”  in  dis- 
tinction from  a “federal”  government,  had  been 
steadily  pressed  to  the  conclusions  arrived  at  in  the 
committee  of  the  whole,  and  now  embraced  in  its 


118 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


report.1  All  but  two  of  them  were  certain  to  re- 
main slaveholding  States;  but  in  the  adoption  of 
numbers  as  the  basis  of  representative  influence  in 
the  government,  they  all  had  a common  interest, 
Avhich  led  them  for  the  present  to  act  together.2 

At  the  head  of  the  minority,  or  the  States  which 
desired  a government  of  federal  equality,  stood  the 
State  of  New  York,  then  the  fifth  State  in  the  Un- 
ion. She  was  represented  by  Alexander  Hamilton, 
Robert  Yates,  and  John  Lansing,  Junior.  The  two 
latter  uniformly  acted  together,  and  of  course  con- 
trolled the  vote  of  the  State.  Hamilton’s  vote  being 
thus  neutralized,  his  influence  on  the  action  of  the 
Convention  extended  no  farther  than  the  weight  and 
importance  attached  to  his  arguments  by  those  who 
listened  to  them. 

Occupying  at  that  period  nearly  a middle  rank  be- 
tween the  largest  and  the  smallest  of  the  States  with 
respect  to  population,  New  York  had  not  yet  grasped, 
or  even  perceived,  the  wonderful  elements  of  her 
future  imperial  greatness.  Her  commerce  was  not 
inconsiderable;  but  it  had  hitherto  been  the  dispo- 
sition of  those  who  ruled  her  counsels  to  retain  its 
regulation  in  their  own  hands,  and  to  subject  it  to 
no  imposts  in  favor  of  the  general  interests  of  the 
Union.  Most  of  her  public  men,  also,3  held  it  to  be 
impracticable  to  establish  a general  government  of 

1 Rhode  Island  was  never  rep-  relative  rank  of  the  States,  I com- 
rescnted  in  the  Convention,  and  pare  the  census  of  1790  and  that 
the  delegation  of  New  Hampshire  of  18'50. 

had  not  yet  attended.  3 The  two  great  exceptions  of 

2 In  all  these  statements  of  the  course  were  Hamilton  and  Jay. 


Ch.  VI.]  NATIONAL  AND  FEDERAL  SYSTEMS. 


119 


sufficient  energy  to  pervade  every  part  of  the  United 
States,  and  to  carry  its  appropriate  benefits  equally 
to  all,  without  sacrificing  the  constitutional  rights  of 
the  States  to  an  extent  that  would  ultimately  prove 
to  be  dangerous  to  the  liberties  of  their  people.  Their 
view  of  the  subject  was,  that  the  uncontrolled  pow- 
ers and  sovereignties  of  the  States  must  be  reserved  ; 
and  that,  consistently  with  the  reservation  of  these, 
a mode  might  be  devised  of  granting  to  the  confed- 
eracy the  moneys  arising  from  a general  system  of 
revenue,  some  power  of  regulating  commerce  and 
enforcing  the  observance  of  treaties,  and  other  ne- 
cessary matters  of  less  moment.  This  was  the  opin- 
ion of  Yates,  the  Chief  Justice  of  the  State,  who 
may  be  taken  as  a fair  representative  of  the  senti- 
ments of  a large  part,  if  not  of  a majority,  of  its  peo- 
ple at  this  time.1  But  neither  he,  nor  any  of  those 
who  concurred  with  him,  succeeded  in  pointing  out 
the  mode  in  which  the  power  to  collect  revenues, 
to  regulate  commerce,  and  to  enforce  the  observance 
of  treaties,  could  be  conferred  on  the  confederacy, 
without  impairing  the  sovereignties  of  the  States.  It 
does  not  appear  whether  this  class  of  statesmen  con- 
templated a grant  of  full  and  unrestrained  power 
over  these  subjects  to  a federal  government,  or 
whether  they  designed  only  a qualified  grant,  capa- 
ble of  being  recalled  or  controlled  by  the  parties  to 
the  confederacy,  for  reasons  and  upon  occasions  of 

1 See  the  candid  and  moderate  ing  tlieir  reasons  for  not  signing  the 
letter  of  Messrs.  Yates  and  Lansing  Constitution.  (Elliot,  I.  480.) 
to  the  legislature  of  the  State,  giv- 


120 


FOliMATION  OF  THE  CONSTITUTION.  [Book  IV. 


which  those  parties  were  to  judge.  From  the  gen- 
eral course  of  their  reasoning  on  the  nature  of  a fed- 
eral government,  it  might  seem  that  the  latter  was 
their  intention.1  It  is  not  difficult  to  understand 
how  these . gentlemen  may  have  supposed  that  an 
irrevocable  grant  of  powers  to  a general  govern- 
ment might  he  dangerous  to  the  liberties  of  the 
people  of  the  States,  because  such  a grant  would 
involve  a surrender  of  more  or  less  of  the  original 
State  sovereignties  to  a legislative  body  external 
to  the  State  itself.  But  if  they  supposed  that  a 
grant  of  such  powers  could  be  made  to  a “ federal  ” 
government,  or  a political  league  of  the  States,  act- 
ing through  a single  body  in  the  nature  of  a diet, 
and  to  be  exercised  when  necessary  by  the  combined 
military  power  of  the  whole,  and  yet  be  any  less  dan- 
gerous to  liberty,  it  is  difficult  to  appreciate  their 
fears  or  to  perceive  the  consistency  of  their  plan. 
If  the  liberties  of  the  people  were  any  the  less 
exposed  under  their,  system,  than  under  that  of  a 
“ national government,  it  must  have  been  because 
their  system  was  understood  by  them  to  involve 
only  a qualified  and  revocable  surrender  of  State 
sovereignty. 

But  however  this  may  have  been,  there  was  un- 

1 In  the  New  Jersey  plan,  which  States,  in  the  last  resort,  by  force, 
the  New  York  gentlemen  (Hamil-  it  would  only  have  been  necessary 
ton  excepted)  supported,  although  for  a State  to  place  itself  in  an  at- 
the  power  to  levy  duties  and  the  titude  of  resistance,  by  a public  act, 
regulation  of  commerce  were  to  be  and  then  the  grant  of  power  might 
added  to  the  existing  powers  of  the  have  been  considered  to  be  revoked 
old  Congress,  yet  as  these  powers  by  the  very  act  of  resisting  its  exe- 
were  to  be  exerted  against  the  cution. 


Ch.  VI.]  NATIONAL  AND  FEDERAL  SYSTEMS. 


121 


doubtedly  a settled  conviction  on  the  part  of  the  two 
delegates  of  New  York  who  controlled  the  vote  of 
the  State  in  the  Convention,  that  they  had  not  re- 
ceived the  necessary  authority  from  their  own  State 
to  go  beyond  the  principle  of  the  Confederation ; that 
it  would  be  impracticable  to  establish  a general  gov- 
ernment, without  impairing  the  State  constitutions 
and  endangering  the  liberties  of  the  people;  and 
that  what  they  regarded  as  a “ consolidated  ” gov- 
ernment was  not  in  the  remotest  degree  within  the 
contemplation  of  the  legislature  of  New  York 
when  they  were  sent  to  take  their  seats  in  the 
Convention. 

The  same  sentiments,  with  far  greater  zeal,  with 
intense  feeling  and  some  acrimony,  were  held  and 
acted  upon  by  Luther  Martin  of  Maryland,  a very 
eminent  lawyer,  and  at  that  time  Attorney-General 
of  the  State,  who  sometimes  had  it  in  his  power, 
from  the  absence  of  his  colleagues,  to  cast  the  vote 
of  his  State  with  the  minority,  and  who  generally 
divided  it  on  all  critical  questions  that  touched  the 
nature  of  the  government.  The  State  itself,  with  a 
population  but  a little  less  than  that  of  New  York,  had 
no  great  reason  to  regard  itself  as  peculiarly  exposed 
to  the  dangers  to  be  apprehended  from  combinations 
among  the  larger  States  to  oppress  the  smaller ; and 
it  does  not  appear  that  these  apprehensions  were 
strongly  felt  by  any  of  her  representatives  excepting 
Mr.  Martin.1  The  great  energy  and  earnestness, 

1 Three  of  the  delegates  of  the  St.  Thomas  Jenifer,  and  Daniel 
State,  James  McHenry,  Daniel  of  Carroll,  signed  the  Constitution. 

VOL.  II.  16 


122 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


however,  of  that  distinguished  person,  prevented  a 
concurrence  of  the  State  with  the  purposes  and  ob- 
jects of  the  majority. 

Connecticut  might  reasonably  consider  herself  as 
one  of  the  smaller  States,  and  her  vote  was  stead- 
ily given  for  an  equality  of  suffrage  in  both  branch- 
es of  the  national  legislature,  down  to  the  time 
of  the  final  division  upon  the  Senate.  The  States 
of  New  Jersey  and  Delaware  formed  the  other 
members  of  the  minority,  upon  this  general  ques- 
tion. 

On  the  one  side,  therefore,  of  what  would  have 
been,  but  for  the  great  inequalities  among  the  States, 
almost  a purely  speculative  question,  we  find  a 
strong  determination,  the  result  of  an  apparent  ne- 
cessity, to  establish  a government  in  which  the  dem- 
ocratic majority  of  the  whole  people  of  the  United 
States  should  be  the  ruling  power;  and  in  which, 
so  far  as  State  influence  was  to  be  felt  at  all,  it 
should  be  felt  only  in  proportion  to  the  relative 
numbers  of  the  people  composing  each  separate  com- 
munity. It  was  considered  by  those  who  embraced 
this  side  of  the  question,  that,  when  the  great  States 
were  asked  to  perpetuate  the  system  of  federal  equal- 
ity on  which  the  Confederation  had  been  founded, 
they  were  asked  to  submit  to  mere  injustice,  on  ac- 
count of  an  imaginary  danger  to  their  smaller  con- 
federates. They  held  it  to  be  manifestly  wrong,  that 
a State  fourteen  times  as  large  as  Delaware  should 
have  only  the  same  number  of  votes  in  the  national 
legislature.  Whether  the  States  were  now  met  as 


Ch.  YI.J 


DIVISION  BETWEEN  THE  STATES. 


123 


parties  to  a subsisting  confederacy,  under  which  they 
might  be  regarded  in  the  same  light  as  the  individ- 
uals composing  the  social  compact ; or  whether  they 
were  to  be  looked  upon  as  so  many  aggregates  of 
individuals  for  whose  personal  rights  and  interests 
provision  was  to  be  made,  as  if  they  composed  a 
nation  already  united,  it  was  believed  by  the  major- 
ity that  no  safe  and  durable  government  could  be 
formed,  if  the  democratic  element  were  to  be  ex- 
cluded. Pure  democracies  had  undoubtedly  been 
attended  with  inconveniences.  But  how  could 
peace  and  real  freedom  be  preserved,  under  the  re- 
publican form,  if  half  a million  of  people  dwelling 
in  one  political  division  of  the  country  possessed 
only  the  same  suffrage  in  the  enactment  of  laws  as 
sixty  thousand  people  dwelling  in  another  division  1 
Leave  out  of  view  the  theory  which  taught  that  the 
States  alone,  regarded  as  members  of  an  existing 
compact,  must  be  considered  as  the  parties  to  the 
new  system,  as  they  had  been  to  the  old,  and  it 
would  be  found  that  the  political  equality  of  the 
free  citizens  of  the  United  States  could  be  made  a 
source  of  that  energy  and  strength  so  much  needed 
and  as  yet  so  little  known.  With  it  was  connected 
the  idea  and  the  practicability  of  legislation  that 
would  reach  and  control  individuals.  Without  it, 
there  could  be  only  a system  of  coercion  of  the 
States,  whose  opposition  would  be  invited,  rather 
than  repressed,  upon  all  occasions  of  importance. 
Abandon  the  necessary  principle  of  governing  by  a 
democratic  majority,  said  George  Mason,  and  if  the 


124  ORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

government  proceeds  to  taxation,  the  States  will  op- 
pose its  powers.1 

On  the  other  hand,  the  minority,  insisting  on  a 
rigid  construction  of  their  powers,  and  planting 
themselves  upon  the  nature  of  the  compact  already 
formed  between  the  States,  contended  that  these 
separate  and  sovereign  communities  had  distinct 
governments  already  vested  with  the  whole  political 
power  of  their  respective  populations,  and  therefore 
that  they  could  not,  consistently  with  the  truth  of 
their  situation,  act  as  if  the  whole  or  any  consider- 
able part  of  that  power  could  be  transferred  by  the 
people  themselves  to  another  government.  They 
said,  that  whatever  power  was  to  be  conferred  on  a 
central  or  general  government  must  be  granted  by 
the  States,  as  political  corporations,  and  that  there- 
fore the  principle  of  the  Union  could  not  be  changed, 
whatever  addition  it  might  be  expedient  to  make  to 
its  authority.  They  said,  that,  even  if  this  theory 
were  not  strictly  true,  the  smaller  States  could  not 
safely  unite  with  the  larger  upon  any  other;  and 
especially  that  they  could  not  surrender  their  liber- 
ties to  the  keeping  of  a majority  of  the  people  in- 
habiting all  the  States,  for  such  a power  would  in- 
evitably destroy  the  State  constitutions.  They  were 
willing,  they  said,  to  enlarge  the  powers  of  the  fed- 
eral government ; willing  to  provide  for  it  the  means 
of  compelling  obedience  to  its  laws ; willing  to  hazard 
much  for  the  general  welfare.  But  they  could  not 
consent  to  place  the  very  existence  of  their  local 


1 Yates’s  Minutes,  Elliot,  I.  433. 


Ch.  VI.]  DIVISION  BETWEEN  THE  STATES. 


125 


governments,  with,  all  their  capacity  to  protect  the 
distinct  interests  of  the  people,  and  all  their  peculiar 
fitness  for  the  administration  of  local  concerns,  at 
the  mercy  of  great  communities,  whose  policy  might 
overshadow  and  whose  power  might  destroy  them. 

To  the  claim  of  political  equality  as  between  a 
citizen  of  the  largest  and  a citizen  of  the  smallest 
State  in  the  Union,  they  opposed  the  doctrine,  that 
in  his  own  State  every  citizen  is  equal  with  every 
other,  and  holds  such  rights  and  liberties,  and  so 
much  political  power,  as  the  State  may  see  fit  to 
bestow  upon  him ; but  that,  when  separate  States 
enter  into  political  relations  with  each  other  for 
their  common  benefit,  it  is  among  the  States  them- 
selves that  the  equality  must  prevail,  because  States 
can  only  be  parties  to  a compact  upon  a footing  of 
natural  equality,  just  as  individuals  are  supposed  to 
enter  society  with  equal  natural  rights.  This 
doctrine,  they  said,  was  especially  necessary  to  be 
applied  between  States  of  very  unequal  magnitudes. 
If  applied,  it  would  render  unnecessary  the  division 
of  the  legislative  body  into  two  chambers ; would 
dispense  with  any  but  a supreme  judicial  tribunal; 
and  would  admit  of  a ratification  by  the  States  in 
Congress,  without  raising  the  hazardous  and  doubt- 
ful question  of  a direct  resort  to  the  people,  whose 
power  to  act  independently  of  their  State  govern- 
ments was  by  some  strenuously  denied. 

These,  in  substance,  were  the  principles  now 
brought  into  direct  collision,  urged  under  a great 
variety  of  forms,  and  recurring  upon  the  successive 


126 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


details  of  the  Constitution,  as  its  formation  proceed- 
ed, and  pressed  with  equal  earnestness  and  equally 
firm  convictions  of  duty  on  both  sides.  I confess 
that  it  does  not  seem  to  me  important,  if  it  be  prac- 
ticable, to  decide  which  party  was  theoretically  cor- 
rect. A great  deal  of  the  reasoning  on  both  sides 
was  speculative,  and  it  is  not  easy  to  deny  some  of 
the  chief  propositions  which  were  maintained  on  the 
one  side  and  the  other.  We  are  too  apt,  perhaps,, 
to  judge  of  the  real  soundness  of  the  opinions  held  by 
opposite  parties  to  the  first  compromise  of  the  Consti- 
tution, by  the  subsequent  history  and  success  of  the 
government,  and  by  the  views  and  feelings  which  we 
entertain  of  that  history  and  that  success.  Whereas, 
in  truth,  if  we  place  ourselves  at  the  point  where  the 
framers  of  the  Constitution  stood  at  the  time  we  are 
examining,  we  shall  find  that,  Avith  the  exception  of 
the  influence  due  to  one  or  two  governing  facts  of 
previous  history,  it  Avas  theoretically  as  correct  to 
contend  for  a purely  federal  as  for  a purely  national 
government.  Almost  everything  depends  upon  the 
object  tOAvards  which  they  Avere  to  reason;  and 
therefore  the  premises  Avere  in  a considerable  degree 
open  to  an  arbitrary  choice.  If  the  object  Avas  to 
establish  a government,  against  the  exercise  of  Avhose 
legitimate  poAvers  State  legislation  could  not  possi- 
bly be  exerted,  some  higher  authority  than  that  of 
the  State  governments  must  be  resorted  to ; and  the 
reasoning  Avhich  tended  to  prove  the  existence  of 
that  authority  and  the  practicability  of  invoking  it, 
and  the  danger  of  any  other  kind  of  government, 


Cu.  VI.]  MERITS  OF  A NATIONAL  SYSTEM. 


127 


comes  logically  and  consistently  in  support  of  the 
great  purpose  to  be  attained.  If,  however,  from  an 
honest  fear  for  the  safety  of  local  interests,  the  pur- 
pose was  to  have  a government  that  would  not  se- 
riously diminish  the  powers  of  the  States,  but  would 
leave  them  with  always  unimpaired  sovereignties, 
capable  of  resisting  the  measures  of  the  central 
power,  then  the  States  were  certainly  competent  and 
sufficient  to  the  formation  of  such  a system,  and  the 
reasoning  which  placed  them  in  the  light  of  parties 
to  a social  compact  was  theoretically  true.  On  the 
one  side,  it  was  believed  that  a government  formed 
by  the  States  upon  the  principle  of  federal  equality 
would  be  destructive  of  the  powers  of  the  general 
government,  whatever  those  powers  might  be.  On 
the  other  side,  it  was  considered  that  the  principle 
of  governing  by  a democratic  majority  of  the  people 
of  all  the  States  would  make  those  powers  too  for- 
midable for  the  safety  of  the  State  constitutions. 
According  to  the  force  we  may  assign  to  the  one  or 
the  other  tendency,  the  reasoning  on  either  side  will 
appear  to  us  to  be  almost  equally  correct. 

But  there  were,  as  I have  said,  one  or  two  facts 
of  previous  history,  which  gave  the  advocates  of  a 
national  government  a great  advantage  over  their 
opponents,  and  went  far  towards  settling  the  real 
merits  of  the  two  opposite  systems.  A federal  sys- 
tem had  been  tried,  and  had  broken  down  in  com- 
plete prostration  of  all  the  appropriate  energies  and 
functions  of  government.  The  advocates  of  the  op- 
posite system,  therefore,  could  point  to  all  the  fail- 


128  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

ures  ancl  all  the  defects  of  the  Confederation,  in 
proof  of  the  reasoning  which  they  employed.  In 
addition  to  this,  they  could  adduce  the  same  general 
tendency  in  all  former  confederacies  of  the  same  na- 
ture. But  no  experiment  had  been  made  by  the 
people  of  the  American  States,  of  a government 
founded  expressly  on  the  national  character  and  re- 
lations of  their  inhabitants ; and  if  the  merits  of 
such  a government  were  now  only  to  be  maintained 
by  theoretical  reasoning,  on  the  other  hand  it  had 
not  suffered  the  injury  of  acknowledged  defeat. 

The  difficulty  in  the  way  of  its  adoption  was  its 
supposed  tendency  to  absorb,  and  perhaps  to  anni- 
hilate, the  sovereignties  of  the  States.  The  advo- 
cates of  the  Virginia  plan  were  called  upon  to  show 
how  the  general  sovereignty  and  jurisdiction  which 
they  proposed  to  give  to  their  system  could  consist 
with  a considerable,  though  subordinate,  jurisdiction 
in  the  States.  One  of  its  moderate  and  candid  op- 
ponents1 declared  that,  if  this  could  be  shown,  the 
objections  to  it  ought  to  be  surrendered ; but  if  not, 
he  thought  that  those  objections  must  have  their 
full  force.  But,  from  the  very  nature  of  the  case, 
that  which  had  not  been  demonstrated  by  experience 
could  rest  only  upon  opinion ; and  while  the  Vir- 
ginia system  made  no  other  provision  for  State  de- 
fence against  encroachments  of  the  general  govern- 
ment than  such  as  might  be  found  in  the  election 
by  the  State  legislatures  of  the  national  Senate,  the 
apprehensions  of  the  smaller  States  could  not  be 


1 Dr.  Johnson  of  Connecticut. 


Ch.  YI.J 


TWO  LEGISLATIVE  CHAMBERS. 


129 


satisfied,  however  admirable  the  theory,  and  however 
able  might  be  the  reasoning  by  which  it  was  sup- 
ported. 

Let  the  reader,  then,  as  he  pursues  the  history  of 
this  conflict  between  the  opposing  interests  of  the 
two  classes  of  States,  and  observes  how  strenuously 
the  different  theories  were  maintained,  until  victory 
became  impossible  on  either  side,  note  the  danger  of 
adhering  too  firmly  to  mere  theoretical  principles, 
in  matters  of  government.  He  will  see  the  impres- 
sive spectacle  of  States  assembled  for  the  formation 
of  some  system  capable  of  answering  the  exigencies 
of  their  situation ; he  will  see  how  rapidly  a differ- 
ence of  local  interests  developed  the  most  opposite 
theories,  and  how  profoundly  those  theories  were 
discussed ; and  he  will  see  this  conflict  carried  on 
for  days,  and  even  for  weeks,  with  all  the  sincerity 
that  interest  lends  to  conviction,  and  all  the  tenacity 
that  conviction  can  produce,  until  at  last  the  whole 
discussion  leads  to  the  probable  failure  of  the  purpose 
for  which  the  assembly  had  been  instituted.  He  will 
then  see  an  amalgamation  of  the  two  systems,  which 
in  their  integrity  were  irreconcilable,  and  will  witness 
the  first  introduction  of  that  mode  of  adjusting  oppo- 
site interests  and  conflicting  theories  of  government 
which  lies  at  the  basis  of  the  Constitution  of  the  United 
States,  and  which  alone  can  furnish  a safe  foundation 
on  which  to  unite  the  destinies  and  wants  of  separate 
communities  possessed  of  distinct  political  organiza- 
tions and  rights. 

The  Convention  had  received  the  report  of  the 

VOL.  II.  17 


130 


FOEMATION  OF  THE  CONSTITUTION.  [Book  IV. 


committee  of  the  whole  on  the  19th  of  June.  From 
that  day  until  the  5 th  of  July  the  struggle  was  con- 
tinued, commencing  with  the  proposition  which 
affirmed  the  division  of  the  legislative  department  of 
the  government  into  two  branches.  Although  such 
an  arrangement  did  not  necessarily  involve  the  prin- 
ciple of  national  and  popular  representation,  it  was 
opposed  as  unnecessary  by  those  who  desired  to 
retain  the  system  of  representation  by  States,  and 
who  therefore  intended  to  preserve  the  existing  or- 
ganization of  the  Congress.  Still,  the  needful  har- 
mony and  completeness  of  the  scheme,  according  to 
the  genius  of  the  Anglo-American  liberty,  required 
this  division  of  the  legislature. 

Doubtless  a single  council  or  chamber  can  pro- 
mulgate decrees  and  enact  laws;  but  it  had  never 
been  the  habit  of  the  people  of  America,  as  it  never 
had  been  the  habit  of  their  ancestors  for  at  least  a 
period  of  somewhat  more  than  five  centuries,  to  re- 
gard a single  chamber  as  favorable  to  liberty,  or  to 
wise  legislation.1  The  separation  into  two  chambers 
of  the  lords  spiritual  and  temporal,  and  the  com- 
mons, in  the  English  constitution,  does  not  seem  to 
have  originated  in  a difference  of  personal  rank,  so 
much  as  in  their  position  as  separate  estates  of  the 
realm.  All  the  orders  might  have  voted  promiscu- 
ously in  one  house,  and  just  as  effectually  signified 

1 Mr.  Hallam  has  traced  the  he  says  recognizes  it  as  already 
present  constitution  of  Parliament  standing  upon  a custom  of  some 
to  the  sanction  of  a statute  in  the  length  of  time.  Const.  History, 
loth  of  Edward  II.  (1322),  which  I.  5.. 


Ch.  VI.] 


TWO  LEGISLATIVE  CHAMBERS. 


131 


the  assent  or  dissent  of  Parliament  to  any  measure 
proposed.1  But  the  practice  of  making  the  assent 
of  Parliament  to  consist  in  the  concurrent  and  sep- 
arate action  of  the  two  estates,  though  difficult  to 
be  traced  to  its  origin  in  any  distinct  purpose  or 
cause,  became  confirmed  by  the  growing  importance 
of  the  commons,  by  their  jealousy  and  vigilance,  and 
by  the  controlling  position  which  they  finally  as- 
sumed. As  Parliament  gradually  proceeded  to  its 
present  constitution,  and  the  separate  rights  and 
privileges  of  the  two  houses  became  established,  it 
was  found  that  the  practice  of  discussing  a measure 
in  two  assemblies,  composed  of  different  persons, 
holding  their  seats  by  a different  tenure  and  repre- 
senting different  orders  of  the  state,  was  in  the  high- 
est degree  conducive  to  the  security  of  the  subject, 
and  to  sound  legislation.2 

So  fully  was  the  conviction  of  the  practical  con- 


1 Mr.  Ilallam  does  not  concur 
in  what  he  says  has  been  a prevail- 
ing opinion,  that  Parliament  was 
not  divided  into  two  houses  at  the 
first  admission  of  the  commons. 
That  they  did  not  sit  in  separate 
chambers  proves  nothing ; for  one 
body  may  have  sat  at  one  end  of 
Westminster  Hall,  and  the  other 
at  the  opposite  end.  But  he  thinks 
that  they  were  never  intermingled 
in  voting ; and,  in  proof  of  this,  he 

adduces  the  fact  that  their  early 
grants  to  the  King  were  separate, 
and  imply  distinct  grantors,  who 
did  not  intermeddle  with  each 
others’  proceedings.  He  further 


shows,  that  in  the  11th  Edward  I. 
the  commons  sat  in  one  place  and 
the  lords  in  another ; and  that  in 
the  8th  Edward  II.  the  commons 
presented  a separate  petition  or 
complaint  to  the  King,  and  the 
same  thing  occurred  in  1 Edward 
IH.  He  infers  from  the  rolls  of 
Parliament,  that  the  houses  were 
divided  as  they  are  at  present  in 
the  8th,  9th,  and  19th  Edward 
n.  (See  the  very  valuable  Chap- 
ter VIII.,  on  the  English  Constitu- 
tion, in  Hallam’s  Middle  Ages,  in. 
342.) 

2 See  on  this  subject  Lieber  on 
Civil  Liberty,  I.  209,  edit.  1853. 


132 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


venience  and  utility  of  two  chambers  established  in 
the  Anglican  mind,  that,  when  representative  gov- 
ernment came  to  be  established  in  the  British  North 
American  Colonies,  although  the  original  reason  for 
the  division  ceased  to  be  applicable,  it  was  retained 
for  its  incidental  advantages.  In  none  of  these  Col- 
onies was  there  any  difference  of  social  condition,  or 
of  political  privilege  or  power,  recognized  in  the  sys- 
tem of  representation ; and  as  there  were,  therefore, 
no  separate  estates  or  orders  among  the  people,  re- 
quiring to  be  protected  against  each  other’s  encroach- 
ments, or  holding  different  relations  to  the  crown, 
we  cannot  attribute  the  adherence  to  the  system  of 
two  chambers,  on  the  part  of  those  who  solicited 
and  received  the  privilege  of  establishing  these  co- 
lonial governments,  to  anything  but  their  belief  in 
its  practical  advantages  for  the  purposes  of  legisla- 
tion. Still  less  can  we  suppose,  that  after  the  Rev- 
olution, and  when  there  no  longer  existed  any  such 
motive  as  might  have  influenced  the  crown  in  mod- 
elling the  colonial  after  the  imperial  institutions,  to 
a certain  extent,  the  people  of  these  States  should 
have  perpetuated  in  their  constitutions  the  principle 
of  a division  of  the  legislature  into  two  chambers, 
for  any  other  purpose  than  to  secure  the  practical 
benefits  which  they  and  their  ancestors  had  always 
found  to  flow  from  it. 

Only  three  exceptions  to  this  practice  existed  in 
America,  at  the  time  of  the  formation  of  the  Consti- 
tution. They  were  the  legislatures  of  the  States  of 
Pennsylvania  and  Georgia,  and  the  Congress  of  the 
Confederation. 


Ch.  VI.] 


TWO  LEGISLATIVE  CHAMBERS. 


133 


But  the  Congress  being  in  fact  only  an  assembly 
of  deputies  from  confederated  States,  the  means 
scarcely  existed  for  the  application  of  the  principle 
so  familiar  in  the  legislatures  of  most  of  the  States 
themselves.  As  a new  government  was  now  to  be 
formed,  whose  theoretical  and  actual  powers  were 
to  be  essentially  different,  an  opportunity  was  af- 
forded for  the  ancient  and  favorite  construction  of 
the  legislative  department.  The  proposal  was  re- 
sisted, not  because  it  was  doubted  that,  in  a govern- 
ment of  direct  legislative  authority,  in  which  the 
people  are  themselves  to  be  represented,  the  system 
of  two  chambers  is  practically  the  best,  but  because 
those  who  opposed  its  introduction  denied  the  pro- 
priety of  attempting  to  establish  a government  of 
that  kind.  The  States  of  New  York,  New  Jersey, 
and  Delaware,  therefore,  recorded  their  votes  against 
such  a division  of  the  legislature,  and  the  vote  of 
Maryland  was  divided  upon  the  question.1 

The  reader  will  observe,  however,  that,  in  its  pres- 
ent aspect,  there  was  a chasm  in  the  Virginia  plan, 
which  to  some  extent  justifies  the  opposition  of  the 
minority  to  the  system  of  two  legislative  chambers. 
According  to  that  plan,  the  people  of  the  States  were 
to  be  represented  in  both  chambers  in  proportion  to 
their  numbers.  But  as  there  were  no  distinct  orders 
among  the  people  to  furnish  a different  basis  for 
the  two  houses,  the  system  must  either  be  a mere 
duplicate  representation  of  the  whole  people,  as  it 
is  in  the  State  constitutions  generally,  or  some  arti- 

1 Connecticut  upon  this  question  voted  with  the  majority. 


134 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ficial  basis  must  be  provided  for  one  house,  to  dis- 
tinguish it  from  the  other,  and  to  furnish  a check  as 
between  the  two.  In  a republican  government,  and 
in  a state  of  society  where  property  is  not  entailed 
and  distinctions  of  personal  rank  cannot  exist,  such 
a basis  is  not  easily  found ; and  if  found,  is  not  likely 
to  be  stable  and  effectual.  The  happy  expedient  of 
selecting  the  States  as  the  basis  of  representation  in 
the  Senate,  which  had  not  yet  been  agreed  upon, 
and  which  was  resorted  to  as  an  adjustment  of  a 
serious  conflict  between  two  opposite  principles  of 
government,  has  furnished  a really  different  founda- 
tion for  the  two  branches,  as  distinct  as  the  separate 
representation  of  the  different  orders  in  the  British 
constitution.  It  has  thus  secured  the  incidental  ad- 
vantages of  two  chambers,  without  resorting  to  those 
fluctuating  or  arbitrary  distinctions  among  the  peo- 
ple, Avhich  can  alone  afford,  in  such  a country  as 
ours,  even  an  ostensible  difference  of  origin  for  legis- 
lative bodies. 

The  same  struggle  which  had  been  maintained 
upon  this  question  was  continued  through  all  the 
votes  taken  upon  the  mode  of  electing  the  members 
of  the  two  branches,  and  upon  their  tenure  of  office. 
It  is  not  necessary  here  to  rehearse  the  details  of 
these  proceedings ; the  result  was,  that  the  members 
of  the  first  branch  of  the  legislature  were  to  be 
chosen  by  the  people  of  the  States  for  a period  of 
two  years,  and  to  be  twenty-five  years  of  age,  while 
the  members  of  the  second  or  senatorial  branch  were 
to  be  chosen  by  the  State  legislatures  for  a period  of 


Ch.  VI.]  DEBATE  ON  THE  RULE  OF  SUFFRAGE.  135 


six  years,  and  to  be  thirty  years  of  age.  The  States 
of  Pennsylvania  and  Virginia  voted  against  the  elec- 
tion of  senators  by  the  legislatures  of  the  States, 
because  it  was  still  uncertain  whether  an  equality 
or  a ratio  of  representation  would  finally  prevail  in 
that  branch,  and  the  election  by  the  legislatures  was 
considered  to  have  a tendency  to  the  adoption  of  an 
equality.1 

At  length,  the  sixth  resolution,  which  defined  the 
powers  of  Congress,  and  the  seventh  and  eighth, 
which  involved  the  fundamental  point  of  the  suf- 
frage in  the  two  branches,  were  reached.2  The  sub- 
ject of  the  powers  of  Congress  was  postponed,  and 
the  question  was  stated  on  the  rule  of  suffrage  for 
the  first  branch,  which  the  resolution  declared  ought 
to  be  according  to  an  equitable  ratio.  In  the  great 
debate  which  ensued,  Madison,  Hamilton,  Gorham, 
Peed,  and  Williamson  combated  the  objections  of 
the  smaller  States,  while  Luther  Martin,  with  his 
accustomed  warmth,  resisted  the  introduction  of  the 
new  principle.  The  discussion  involved  on  both 
sides  a repetition  of  the  arguments  previously  em- 
ployed ; but  some  of  the  views  presented  are  of  great 
importance,  especially  those  taken  by  Madison  and 
Hamilton,  of  the  situation  hi  which  the  smaller 
States  must  be  placed,  if  a constitution  should  not 
be  formed  and  adopted  containing  a just  distribution 
of  political  power  among  the  whole  people  of  the 
country,  creating  thereby  a government  of  sufficient 
energy  to  protect  each  and  all  of  the  States  against 

1 Madison,  Elliot,  V.  240. 


2 June  28- 


136 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


foreign  powers,  against  the  influence  of  the  larger 
members  of  the  confederacy,  and  against  the  dangers 
to  be  apprehended  from  their  own  governments. 

Let  each  State,  said  Mr.  Madison,  depend  on  it- 
self for  its  security,  in  a position  of  independence  of 
the  Union,  and  let  apprehensions  arise  of  dangers 
from  distant  powers,  or  from  neighboring  States, 
and  from  their  present  languishing  condition,  all  the 
States,  large  as  well  as  small,  would  be  transformed 
into  vigorous  and  high-toned  governments,  with  an 
energy  fatal  to  liberty  and  peace.  The  weakness 
and  jealousy  of  the  smaller  States  would  quickly  in- 
troduce some  regular  military  force,  against  sudden 
danger  from  their  powerful  neighbors ; the  example 
would  be  followed,  would  soon  become  universal, 
and  the  means  of  defence  against  external  danger 
would  become  the  instruments  of  tyranny  at  home. 
These  consequences  were  to  be  apprehended,  whether 
the  States  should  run  into  a total  separation  from 
each  other,  or  into  partial  confederacies.  Either 
event  would  be  truly  deplorable,  and  those  who 
might  be  accessory  to  either  could  never  be  forgiven 
by  their  country,  or  by  themselves.1 

To  these  consequences  of  a dissolution  of  the 
Union,  Hamilton  added  another,  equally  serious. 
Alliances,  he  declared,  must  be  formed  with  differ- 
ent rival  and  hostile  nations  of  Europe,  who  would 
seek  to  make  us  parties  to  their  own  quarrels.  The 
representatives  of  foreign  nations  having  American 
dominions  betrayed  the  utmost  anxiety  about  the 


1 Madison,  Elliot,  Y.  256. 


Ch.  VI.]  DEBATE  ON  THE  RULE  OF  SUFFRAGE. 


137 


result  of  that  meeting  of  the  States.  It  had  been 
said  that  respectability  in  the  eyes  of  Europe  was 
not  the  object  at  which  we  were  to  aim ; that  the 
proper  design  of  republican  government  was  domes- 
tic tranquillity  and  happiness.  This  was  an  ideal 
distinction.  No  government  could  give  us  tranquil- 
lity and  happiness  at  home,  which  did  not  possess 
sufficient  stability  and  strength  to  make  us  respect- 
able abroad.  This  was  the  critical  moment  for  form- 
ing such  a government.  We  should  run  every  risk 
in  trusting  to  future  amendments.  As  yet,  we  re- 
tain the  habits  of  union.  We  are  weak,  and  sensible 
of  our  weakness.  Henceforward  the  motives  would 
become  feeble  and  the  difficulties  greater.  It  was  a 
miracle  that  they  were  here,  exercising  their  tran- 
quil and  free  deliberations  on  the  subject.  It  would 
be  madness  to  trust  to  future  miracles.1 

But  these  warnings  were  of  no  avail  against  the 
settled  determination  of  those  who  saw  greater  dan- 
gers in  the  establishment  of  a government  which 
was  in  their  view  to  approximate  the  condition  of 
the  States  to  that  of  counties  in  a single  State.  The 
principle  of  a proportionate  representation  of  the 
populations  of  the  State,  was  just  and  necessary; 
but  it  was  now  leading  to  the  extreme  of  an  entire 
separation,  because  it  was  carried  to  the  extreme  of 
a full  application  to  every  part  of  the  government. 
In  like  manner,  there  was  an  equally  urgent  neces- 
sity for  some  provision  which  should  receive  the 
States  in  their  political  capacity,  and  on  a footing  of 

1 Madison,  Elliot,  V.  258. 

VOL.  II.  18 


138 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


equality,  as  constituent  parts  of  the  system.  But 
this  principle  was  now  forcing  the  majority  into  the 
alternative  of  a partial  confederacy,  or  of  none  at  all, 
because  it  was  insisted  that  the  government  must 
be  exclusively  founded  on  it.  Neither  party  was 
ready  to  adopt  the  suggestion  that  the  two  ideas, 
instead  of  being  opposed,  ought  to  be  combined,  so 
that  in  one  branch  the  people  should  be  represented, 
and  in  the  other  the  States.1  The  consequence  was 
that  the  proportionate  rule  of  suffrage  for  the  first 
branch  was  established  by  a majority  of  one  State 
only;2  and  the  Convention  passed  on,  with  a fixed 
and  formidable  minority  wholly  dissatisfied,  to  con- 
sider what  rule  should  be  applied  to  the  Senate. 

The  objects  of  a Senate  were  readily  apprehended. 
They  were,  in  the  first  place,  that  there  might  be  a 
second  chamber,  with  a concurrent  authority  in  the 
enactment  of  laws ; secondly,  that  a greater  de- 
gree of  stability  and  wisdom  might  reside  in  its 
deliberations,  than  would  be  likely  to  he  found  in 
the  other  branch  of  the  legislative  department ; and, 
thirdly,  that  there  might  be  some  diversity  of  inter- 
est between  the  two  bodies.  These  objects  were  to 
be  attained  by  providing  for  the  Senate  a distinct 
and  separate  basis  of  its  own.  If  such  a basis  is 
found  among  the  individuals  composing  a political 

1 It  was  made  at  this  stage  by  South  Carolina,  and  Georgia,  6 ; 

Dr.  Johnson.  those  in  favor  of  it  were  Connecti- 

2 The  States  opposed  to  an  cut,  New  York,  New  Jersey,  and 
equality  of  suffrage  in  the  first  Delaware.  The  vote  of  Maryland 
branch  were  Massachusetts,  Penn-  was  divided. 

sylvania,  Virginia,  North  Carolina, 


Ch.  YL] 


BASIS  OF  THE  SENATE. 


139 


society,  it  must  consist  of  the  distinctions  among 
them  either  in  respect  to  social  rank  or  in  respect 
to  property.  With  regard  to  the  first,  the  absence 
of  all  distinctions  of  rank  rendered  it  impossible  to 
assimilate  the  Senate  of  the  United  States  to  the 
aristocratic  bodies  which  were  found  in  other  gov- 
ernments possessed  of  two  legislative  chambers. 
Property,  as  held  by  individuals,  might  have  been 
assumed  as  the  basis  of  a distinct  representation, 
if  the  laws  and  customs  of  the  different  States  had 
generally  admitted  of  its  possession  in  large  masses 
through  successive  generations.  But  they  did  not 
admit  of  it.  The  general  distribution  and  diffusion 
of  property  was  the  rule ; its  lineal  transmission 
from  the  father  to  the  eldest  son  was  the  exception. 
Had  the  Senate  been  founded  upon  property,  it  must 
have  been  upon  the  ratio  of  wealth  as  between  the 
different  States,  in  the  same  manner  in  which  the 
senatorial  representation  of  counties  was  arranged 
under  the  first  constitution  of  Massachusetts.1  It 
was  very  soon  settled  and  conceded,  that  the  States, 
as  political  societies,  must  be  preserved ; and  if  they 
were  to  be  represented  as  corporations,  or  as  so  many 
separate  aggregates  of  individuals,  they  must  be  re- 
ceived into  the  representation  on  an  equal  footing, 
or  according  to  their  relative  weight.  An  inquiry 
into  their  relative  wealth  must  have  involved  the 
question,  as  to  five  of  them  at  least,  whether  their 
slaves  were  to  be  counted  as  part  of  that  wealth.  No 
satisfactory  decision  of  this  naked  question  could  have 

1 Mr.  Baldwin  of  Georgia  suggested  this  model. 


140 


FORMATION  OF  THE  CONSTITUTION.  (Book  IV. 


been  had ; and  it  is  to  be  considered  among  the  most 
fortunate  of  the  circumstances  attending  the  forma- 
tion of  the  Constitution,  that  this  question  was  not 
solved,  with  a view  of  founding  the  Senate  upon  the 
relative  wealth  of  the  States. 

Two  courses  only  remained.  The  basis  of  repre- 
sentation in  the  Senate  must  either  be  found  in  the 
numbers  of  people  inhabiting  the  States,  creating  an 
unequal  representation,  or  the  people  of  each  State, 
regarded  as  one,  and  as  equal  with  the  people  of 
every  other  State,  must  be  represented  by  the  same 
number  of  voices  and  votes.  The  former  was  the 
plan  insisted  on  by  the  friends  and  advocates  of  the 
“ national  ” system ; the  latter  was  the  great  object 
on  which  the  minority  now  rallied  all  their  strength. 

The  debate  was  not  long  protracted;  but  it  was 
marked  with  an  energy,  a firmness,  and  a warmth, 
on  both  sides,  which  reveal  the  nature  of  the  peril 
then  hanging  over  the  unformed  institutions,  whose 
existence  now  blesses  the  people  of  America.  As 
the  delegations  of  the  States  approached  the  decision 
of  this  critical  question,  the  result  of  a separation 
became  apparent,  and  with  it  phantoms  of  coming 
dissension  and  strife,  of  foreign  alliances  and  ad- 
verse combinations,  loomed  in  the  future.  Reason 
and  argument  became  powerless  to  persuade.  Pa- 
triotism, for  a moment,  lost  its  sway  over  men  who 
would  at  any  time  have  died  for  their  common  coun- 
try. Not  mutterings  only,  but  threats  even  were 
heard  of  an  appeal  to  some  foreign  ally,  by  the 
smaller  States,  if  the  larger  ones  should  dare  to  dis- 


Ch.  VI.]  VOTE  ON  REPRESENTATION  IN  THE  SENATE.  141 

solve  the  confederacy  by  insisting  on  an  unjust 
scheme  of  government. 

Ellsworth,  of  Connecticut,  in  behalf  of  the  minor- 
ity, offered  to  accept  the  proportional  representation 
for  the  first  branch,  if  the  equality  of  the  States  were 
admitted  in  the  second,  thus  making  the  govern- 
ment partly  national  and  partly  federal.  It  would  be 
vain,  he  said,  to  attempt  any  other  than  this  middle 
ground.  Massachusetts  was  the  only  Eastern  State 
that  would  listen  to  a proposition  for  excluding  the 
States,  as  equal  political  societies,  from  an  equal 
voice  in  both  branches.  The  others  would  risk 
every  consequence,  rather  than  part  with  so  dear  a 
right.  An  attempt  to  deprive  them  of  it  was  at 
once  cutting  the  body  of  America  in  two. 

At  this  moment,  foreseeing  the  probability  of  an 
equal  division  of  the  States  represented  in  the  Con- 
vention, one  of  the  New  Jersey  members 1 proposed 
that  the  President  should  write  to  the  executive  of 
New  Hampshire,  to  request  the  attendance  of  the 
deputies  who  had  been  chosen  to  represent  that 
State,  and  who  had  not  yet  taken  seats.  Two  States 
only  voted  for  this  motion,2  and  the  discussion  pro- 
ceeded. Madison,  Wilson,  and  King,  with  great 
earnestness,  resisted  the  compromise  proposed  by 
Ellsworth,  and  when  the  vote  was  finally  taken,  five 
States  were  found  to  be  in  favor  of  an  equal  repre- 
sentation in  the  Senate,  five  were  opposed  to  it,  and 
the  vote  of  Georgia  was  divided.3 


1 David  Brearly. 

2 New  York  and  New  Jersey. 


3  The  question  was  put  upon 
Ellsworth’s  motion  to  allow  the 


142 


FORMATION  OF  THE  CONSTITUTION.  [Cook  IV. 


Thus  was  this  assembly  of  great  and  patriotic 
men  brought  finally  to  a stand,  by  the  singular 
urgency  with  which  opposite  theories,  springing 
from  local  interests  and  objects,  were  sought  to  be 
pressed  into  a constitution  of  government,  that  was 
to  be  accepted  by  communities  widely  differing  in 
extent,  in  numbers,  and  in  wealth,  and  in  all  that 
constitutes  political  power,  and  which  were  at  the 
same  time  to  remain  distinct  and  separate  States. 
As  we  look  back  to  the  possibility  of  a failure  to 
create  a constitution,  and  try  to  divest  ourselves  of 
the  identity  which  the  success  of  that  experiment 
has  given  to  our  national  life,  the  imagination  wan- 
ders over  a dreary  waste  of  seventy  years,  which  it 
can  only  fill  with  strange  images  of  desolation.  That 
the  administration  of  Washington  should  never  have 
existed;  that  Marshall  should  never  have  adjudi- 
cated, or  Jackson  conquered ; that  the  arts,  the 
commerce,  the  letters  of  America  should  not  have 


States  an  equal  representation  in 
the  Senate.  The  vote  stood,  Con- 
necticut, New  York,  New  Jersey, 
Delaware,  Maryland,  ay,  5 ; Mas- 
sachusetts, Pennsylvania,  Virginia, 
North  Carolina,  South  Carolina, 
no,  5 ; Georgia  divided.  The  per- 
son who  divided  the  vote  of  Geor- 
gia, and  thus  prevented  a decision 
which  must  have  resulted  in  a dis- 
ruption of  the  Convention,  was 
Abraham  Baldwin.  We  have  no 
account  of  the  motives  with  which 
he  cast  this  vote,  except  an  obscure 
suggestion  by  Luther  Martin,  which 


is  not  intelligible.  (Elliot,  I.  35G.) 
Baldwin  was  a very  wise  and  a 
very  able  man.  He  was  not  in 
favor  of  Ellsworth's  proposition, 
but  he  probably  saw  the  conse- 
quences of  forcing  the  minority 
States  to  the  alternatives  of  receiv- 
ing what  they  regarded  as  an  un- 
just and  unsafe  system,  or  of  quit- 
ting the  Union.  By  dividing  the 
vote  of  his  State  he  prevented  this 
issue,  although  he  also  made  it 
probable  that  the  Convention  must 
be  dissolved  without  the  adoption 
of  any  plan  whatever. 


Ch.  VI.]  CONSEQUENCES  OF  A SEPARATION. 


143 


taken  the  place  which  they  hold  in  the  affairs  of  the 
world ; that  instead  of  this  great  Union  of  prosper- 
ous and  powerful  republics,  made  one  prosperous 
and  powerful  nation,  history  should  have  had  noth- 
ing to  show  and  nothing  to  record  hut  border  war- 
fare and  the  conflicts  of  worn-out  communities,  the 
sport  of  the  old  clashing  policies  of  Europe;  that 
self-government  should  have  become  one  of  the  ex- 
ploded delusions  with  which  mankind  have  succes- 
sively deceived  themselves,  and  republican  institutions 
have  been  made  only  another  name  for  anarchy  and 
social  disorder ; — all  these  things  seem  at  once  in- 
conceivable and  yet  probable,  — at  once  the  fearful 
conj wrings  of  fancy,  and  the  inevitable  deductions  of 
reason. 

We  know  not  what  combinations,  what  efforts, 
might  have  followed  the  separation  of  that  conven- 
tion of  American  statesmen,  without  having  accom- 
plished the  work  for  which  they  had  been  assembled. 
We  do  know,  that,  if  they  could  not  have  succeeded 
in  framing  and  agreeing  upon  a system  of  govern- 
ment capable  of  commending  itself  to  the  free  choice 
of  the  people  of  their  respective  States,  no  other  body 
of  men  in  this  country  could  have  done  it.  We 
know  that  the  Confederation  was  virtually  at  an 
end ; that  its  power  was  exhausted,  although  it  still 
held  the  nominal  seat  of  authority.  The  Union 
must  therefore  have  been  dissolved  into  its  compo- 
nent parts,  but  for  the  wisdom  and  conciliation  of 
those  who,  in  their  original  earnestness  to  secure  a 
perfect  theory,  had  thus  encountered  an  insuperable 


144 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


obstacle  and  brought  about  a great  hazard.  I have 
elsewhere  said  that  these  men  were  capable  of  the 
highest  of  the  moral  virtues,  — that  their  magna- 
nimity was  as  great  as  their  intellectual  acuteness 
and  strength.  Let  us  turn  to  the  proof  on  which 
rests  their  title  to  this  distinction. 


CHAPTEK  VII. 


First  Grand  Compromises  of  the  Constitution.  — Popula- 
tion of  the  States  adopted  as  the  Basis  of  Representa- 
tion in  the  House.  — Rule  for  Computing  the  Slaves.  — 
Equality  of  Representation  of  the  States  adopted  for 
the  Senate. 


As  the  States  were  now  exactly  divided  on  the 
question  whether  there  should  be  an  equality  of 
votes  in  the  second  branch  of  the  legislature,  some 
compromise  seemed  to  be  necessary,  or  the  effort  to 
make  a constitution  must  be  abandoned.  A conver- 
sation as  to  what  was  expedient  to  be  done,  resulted 
in  the  appointment  of  a committee  of  one  member 
from  each  State,  to  devise  and  report  some  mode  of 
adjusting  the  whole  system  of  representation.1 

According  to  the  Virginia  plan,  as  it  then  stood 
before  the  Convention,  the  right  of  suffrage  in  both 
branches  was  to  be  upon  some  equitable  ratio,  in 
proportion  to  the  whole  number  of  free  inhabitants  in 
each  State,  to  which  three  fifths  of  all  other  persons, 
except  Indians  not  paying  taxes,  were  to  be  added. 
Nothing  had  been  done,  to  fix  the  ratio  of  represen- 
tation ; and  although  the  principle  of  popular  repre- 

1 The  committee  consisted  of  Franklin,  Bedford,  Martin,  Mason, 
Gerry,  Ellsworth,  Yates,  Patterson,  Davie,  Rutledge,  and  Baldwin. 

VOL.  ii.  19 


146 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


sentation  had  been  affirmed  by  a majority  of  the 
Convention  as  to  the  first  branch,  it  had  been  rejected 
as  to  the  second  by  an  equally  divided  vote  of  the 
States.  The  whole  subject,  therefore,  was  now  sent 
to  a committee  of  compromise,  who  held  it  under 
consideration  for  three  days.1 

The  same  struggle  which  had  been  carried  on  in 
the  Convention  was  renewed  in  the  committee ; the 
one  side  contending  for  an  inequality  of  suffrage  in 
both  branches,  the  other  for  an  equality  in  both. 
Dr.  Franklin  at  length  gave  way,  and  proposed  that 
the  representation  in  the  first  branch  should  be  ac- 
cording to  a fixed  ratio  of  the  inhabitants  of  each 
State,  computed  according  to  the  rule  already  agreed 
upon,  and  that  in  the  second  branch  each  State 
should  have  an  equal  vote.  The  members  of  the 
larger  States  reluctantly  acquiesced  in  this  arrange- 
ment ; the  members  of  the  smaller  States,  with  one 
or  two  exceptions,  considered  their  point  gained. 
When  the  report  came  to  be  made,  it  was  found 
that  the  committee  had  not  only  agreed  upon  this 
as  a compromise,  but  that  they  had  made  a distinc- 
tion of  some  importance  between  the  powers  of  the 
two  branches,  by  confining  to  the  first  branch  the 
power  of  originating  all  bills  for  raising  or  appro- 
priating money  and  for  fixing  the  salaries  of  officers 
of  the  government,  and  by  providing  that  such  bills 

should  not  be  altered  or  amended  in  the  second 

* 

1 The  committee  was  appointed  tion  in  the  interval  transacted  no 
on  the  2d  of  July,  and  made  their  business, 
report  on  the  5th.  The  Conven- 


Ch.  VII.] 


REPORT  OF  A COMPROMISE. 


147 


branch.  This  was  intended  for  a concession  by  the 
smaller  States  to  the  larger.1  The  ratio  of  represen- 
tation in  the  House  was  fixed  by  the  committee  at 
one  member  for  every  forty  thousand  inhabitants, 
in  which  three  fifths  of  the  slaves  were  to  be  com- 
puted; each  State  not  possessing  that  number  of 
inhabitants  to  be  allowed  one  member.  The  num- 
ber of  senators  was  not  designated. 

This  arrangement  was,  upon  the  whole,  reasonable 
and  equitable.  It  balanced  the  equal  representation 
of  the  States  in  the  Senate  against  the  popular  rep- 
resentation in  the  House,  and  it  gave  to  the  larger 
States  an  important  influence  over  the  appropriations 
of  money  and  the  levying  of  taxes.  Nor  can  tide  ad- 
mission of  the  slaves,  in  some  proportion,  into  the  rule 
of  representation,  be  justly  considered  as  an  improper 
concession,  in  a system  in  which  the  separate  organ- 
izations of  the  States  were  to  be  retained,  and  in 
which  the  States  were  to  be  represented  in  propor- 
tion to  their  respective  populations. 

The  report  of  the  committee  had  recommended 
that  this  plan  should  be  taken  as  a whole ; but  as 
its  several  features  were  distasteful  to  different  sec- 
tions of  the  Convention,  and  almost  all  parties  were 
disappointed  in  the  result  arrived  at  by  the  commit- 
tee, the  several  parts  of  the  plan  became  at  once 
separate  subjects  of  discussion.  In  the  first  place, 
the  friends  of  a pure  system  of  popular  representation 
in  both  branches  objected  to  the  provision  concerning 
money  and  appropriation  bills,  as  being  no  concession 

1 See  further  as  to  this  exclusive  power  of  the  House,  post. 


148 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


on  the  part  of  the  smaller  States,  and  as  a useless 
restriction.1  It  therefore,  in  their  view,  left  in  force 
all  their  objections  against  allowing  each  State  an 
equal  voice  in  the  Senate.  But  it  was  voted  to 
retain  it  in  the  report,2  and  the  equal  vote  of  the 
States  in  the  second  branch  was  also  retained.3 

The  scale  of  apportionment  of  representatives, 
recommended  in  the  report  of  the  committee,  was 
also  objected  to  on  various  grounds.  It  was  said 
that  a mere  representation  of  persons  was  not  what 
the  circumstances  of  the  case  required ; — that 
property  as  well  as  persons  ought  to  be  taken  into 
the  account  in  order  to  obtain  a just  index  of  the 
relative  rank  of  the  States.  It  was  also  urged,  that, 
if  the  system  of  representation  were  to  be  settled  on 
a ratio  confined  to  the  population  alone,  the  new 
States  in  the  West  would  soon  equal,  and  probably 
outnumber,  the  Atlantic  States,  and  thus  the  latter 
would  be  in  a minority  for  ever.  For  these  reasons, 
the  subject  of  apportioning  the  representatives  was 
recommitted  to  five  members,4  who  subsequently 
proposed  a scheme,  by  which  the  first  House  of 
Representatives  should  consist  of  fifty-six  members, 
distributed  among  the  States  upon  an  estimate  of 
their  present  condition,5  and  authorizing  the  legis- 

1 Madison,  Butler,  Gouverneur  North  Carolina,  ay,  6 ; Pennsyl- 
Morris,  and  Wilson.  vania,  Virginia,  South  Carolina, 

3 Five  States  voted  to  retain  it,  no,  3 ; Massachusetts,  Georgia,  di- 
three  voted  against  it,  and  three  vided.  Ibid.  285,  286. 
were  divided.  This  was  treated  as  4 Gouverneur  Morris,  Gorham, 
an  affirmative  vote.  Elliot,  V.  255.  Randolph,  Rutledge,  and  King. 

3 Connecticut,  New  York,  New  5 They  gave  to  New  Hampshire, 
Jersey,  Delaware,  Maryland,  2;  Massachusetts,  7 ; Rhode  Island, 


Ch.  VII.]  ADJUSTMENT  OF  THE  COMPROMISE. 


149 


lature,  as  future  circumstances  might  require,  to 
increase  the  number  of  representatives,  and  to  dis- 
tribute them  among  the  States  upon  a compound 
ratio  of  their  wealth  and  the  numbers  of  their  inhab- 
itants.1 The  latter  part  of  this  proposition  was 
adopted,  but  a new  and  different  apportionment,  of 
sixty-five  members  for  the  first  meeting  of  the  legis- 
lature, was  sanctioned  by  a large  vote  of  the  States, 
after  a second  reference  to  a committee  of  one  mem- 
ber from  each  State.2 

These  votes  had  been  taken  for  the  purpose  of 
agreeing  upon  amendments  to  the  original  report  of 
the  compromise  committee,  which  they  would  have 
so  modified  as  to  introduce  into  it,  in  place  of  a ratio 
of  forty  thousand  inhabitants,  including  three  fifths 
of  the  slaves,  a fixed  number  of  representatives  for 
the  first  meeting  of  the  legislature,  distributed  by 
estimate  among  the  States,  and  for  all  subsequent 
meetings  an  apportionment  by  the  legislature  itself 
upon  the  combined  principles  of  the  wealth  and 
numbers  of  inhabitants  of  the  several  States.  But 
in  order  to  understand  the  objections  to  the  latter 
part  of  this  proposition,  and  the  modifications  that 
were  still  to  be  made  in  it,  it  is  necessary  for  us  here 
to  recur  to  that  special  interest  which  caused  a new 

1 ; Connecticut,  4;  New  York,  5;  New  Hampshire,  3;  Massachusetts, 
New  Jersey,  3 ; Pennsylvania,  8 ; 8 ; Rhode  Island,  1 ; Connecticut, 

Delaware,  1 ; Maryland,  4 ; Yir-  5 ; New  York,  6 ; New  Jersey,  4 ; 
ginia,  9 : North  Carolina,  5 ; South  Pennsylvania,  8 ; Delaware,  1 ; 
Carolina,  5;  Georgia,  2.  Maryland,  6 ; Virginia,  10;  North 

1 Elliot,  V.  287,  288.  Carolina,  5 ; South  Carolina,  5 ; 

2 This  apportionment  gave  to  Georgia,  3. 


150 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and  most  serious  difficulty  in  the  subject  of  repre- 
sentation, and  which  now  began  to  be  distinctly 
asserted  by  those  whose  duty  it  was  to  provide  for 
it.  There  is  no  part  of  the  history  of  the  Constitu- 
tion that  more  requires  to  be  examined  with  a care- 
ful attention  to  facts,  with  an  unprejudiced  consid- 
eration of  the  purposes  and  motives  of  those  who 
became  the  agents  of  its  great  compromises  and  com- 
pacts between  sovereign  States,  and  with  an  impar- 
tial survey  of  the  difficulties  with  which  they  had  to 
contend. 

Twice  had  the  Convention  affirmed  the  propriety 
of  counting  the  slaves,  if  the  States  were  to  be  rep- 
resented according  to  the  numbers  of  their  inhab- 
itants ; and  on  the  part  of  the  slaveholding  States 
there  had  hitherto  been  no  dissatisfaction  manifested 
with  the  old  proportion  of  three  fifths,  originally  pro- 
posed under  the  Confederation  as  a rule  for  including 
them  in  the  basis  of  taxable  property.  But  the  idea 
was  now  advanced,  that  numbers  of  inhabitants  were 
not  a sufficient  measure  of  the  wealth  of  a State,  and 
that,  in  adjusting  a system  of  representation  between 
such  States  as  those  of  the  American  Union,  regard 
should  be  had  to  their  relative  wealth,  since  those 
which  were  to  be  the  most  heavily  taxed  ought  to 
have  a proportionate  influence  in  the  government. 
Hence  the  plan  of  combining  numbers  and  wealth  in 
the  rule.  This  was  mainly  an  expedient  to  prevent  the 
balance  of  power  from  passing  to  the  Western  from 
the  Atlantic  States.1  It  was  supposed  that  the  former 

1 See  Mr.  Gorham’s  explanation ; Madison,  Elliot,  V.  288. 


Ch.  VII.]  ADJUSTMENT  OF  THE  COMPROMISE. 


151 


might  in  progress  of  time  have  the  larger  amount  of 
population;  but  that,  as  the  latter  would  at  the 
commencement  of  the  government  have  the  power 
in  their  own  hands,  they  might  deal  out  the  right 
of  representation  to  new  States  in  such  proportions 
as  would  be  most  for  their  own  interests.  Still 
there  were  grave  objections  to  this  combined  rule 
of  numbers  and  wealth  as  applied  to  the  slavehold- 
ing States.  In  the  first  place,  it  was  extremely 
vague;  it  left  the  question  wholly  undetermined 
whether  the  slaves  were  to  be  regarded  as  persons 
or  as  property,  and  therefore  left  that  question  to 
be  settled  by  the  legislature  at  every  revision  of  the 
system.  Moreover,  although  this  rule  might  enable 
the  Atlantic  States  to  retain  the  predominating  in- 
fluence in  the  government  as  against  the  Western 
interests,  it  might  also  enable  the  Northern  to  retain 
the  control  as  against  the  Southern  States,  after  the 
former  had  lost  and  the  latter  had  gained  a majority 
of  population.  The  proposed  conjectural  apportion- 
ment of  members  for  the  first  Congress  would  give 
thirty-six  members  to  the  States  that  held  few  or  no 
slaves,  and  twenty-nine  to  the  States  that  held  many. 
Mason  and  Randolph,  who  represented  in  a candid 
manner  the  objections  which  Virginia  must  entertain 
to  such  a scheme,  did  not  deny,  that,  according  to  the 
present  population  of  the  States,  the  Northern  part 
had  a right  to  preponderate ; but  they  said  that  this 
might  not  always  be  the  case;  and  yet  that  the 
power  might  be  retained  unjustly,  if  the  proportion 
on  which  future  apportionments  were  to  be  made 


152  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

by  the  legislature  were  not  ascertained  by  a definite 
rule,  and  peremptorily  fixed  by  the  Constitution. 
Gouverneur  Morris,  who  strenuously  maintained  the 
necessity  for  guarding  the  interests  of  the  Atlantic 
against  those  of  the  Western  States,  insisted  that 
the  combined  principles  of  numbers  and  wealth  gave 
a sufficient  rule  for  the  legislature ; that  it  was  a 
rule  which  they  could  execute ; and  that  it  would 
avoid  the  necessity  of  a distinct  and  special  admission 
of  the  slaves  into  the  census,  — an  idea  which  he 
was  sure  the  people  of  Pennsylvania  would  reject. 
Mr.  Madison  argued,  forcibly,  that  unfavorable  dis- 
tinctions against  the  new  States  that  might  be  formed 
in  the  West  would  be  both  unjust  and  impolitic. 
He  thought  that  their  future  contributions  to  the 
treasury  had  been  much  underrated ; that  the  extent 
and  fertility  of  the  Western  soil  would  create  a vast 
agricultural  interest ; and  that,  whether  the  imposts 
on  the  foreign  supplies  which  they  would  require 
were  levied  at  the  mouth  of  the  Mississippi  or  in 
the  Atlantic  ports,  their  trade  would  certainly  ad- 
vance with  their  population,  and  would  entitle  them 
to  a rule  which  should  assume  numbers  to  be  a fair 
index  of  wealth. 

The  arguments  against  the  combined  principles 
of  numbers  and  wealth,  as  a mere  general  direction 
to  the  legislature,  and  against  their  joint  operation 
upon  the  contrasted  interests  of  the  Western  and  the 
Atlantic  States,  appear  to  have  prevailed  with  some 
of  the  more  prominent  of  the  Northern  members.1 


1 Sherman  and  Gorham. 


Ch.  VII.]  ADJUSTMENT  OP  THE  COMPROMISE.  153 

Accordingly,  when  a counter  proposition  was 
brought  forward  by  Williamson,1  — which  contem- 
plated a return  to  the  principle  of  numbers  alone, 
and  was  intended  to  provide  for  a periodical  census 
of  the  free  white  inhabitants  and  of  three  fifths  of 
all  other  persons,  and  that  the  representation  should 
be  regulated  accordingly,  — six  States  on  a division 
of  the  question  voted  for  a census  of  the  free  inhab- 
itants, and  four  States  recorded  their  votes  against 
it.2  This  result  brought  the  Convention  to  a direct 
vote  upon  the  naked  question  whether  the  slaves 
should  be  included  as  persons,  and  in  the  proportion 
of  three  fifths,  in  the  census  for  the  future  apportion- 
ment of  representatives  among  the  States. 

Massachusetts  and  Pennsylvania  now,  for  the  first 
time,  separated  themselves  from  Virginia.  It  was 
perceived  that  a system  of  representation  by  num- 
bers would  draw  after  it  the  necessity  for  an  admis- 
sion of  the  slaves  into  the  enumeration,  unless  it 
were  confined  to  the  free  inhabitants.  On  the  one 
hand,  the  delegates  of  these  two  States  had  to  look 
to  the  probable  encouragement  of  the  slave-trade, 


1 Of  North  Carolina. 

2 Massachusetts,  Connecticut, 
New  Jersey,  Pennsylvania,  Vir- 
ginia, North  Carolina,  ay,  6 ; Del- 
aware, Maryland,  South  Carolina, 
Georgia,  no,  4.  The  votes  of 
South  Carolina  and  Georgia  were 
given  in  the  negative,  because 
they  desired  that  the  blacks  should 
be  included  in  the  census  equally 
with  the  whites.  For  the  same 


reason,  as  we  shall  see  presently, 
those  States  voted  against  the  other 
branch  of  the  proposition,  which 
would  give  but  three  fifths  of  the 
slaves.  But  upon  what  principle, 
unless  it  was  from  general  opposi- 
tion to  all  numerical  representation, 
the  State  of  Delaware  should  have 
voted  with  them  on  both  of  these 
features  of  the  proposed  census,  is, 
I confess,  to  me  inexplicable. 


VOL.  II. 


20 


154 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


that  would  follow  an  admission  of  the  blacks  into 
the  representation,  and  to  the  probable  refusal  of 
their  constituents  to  sanction  such  an  admission. 
On  the  other  hand,  they  had  to  encounter  the  diffi- 
culty of  arranging  a just  rule  of  popular  representa- 
tion between  States  which  would  have  no  slaves,  or 
very  few,  and  States  which  would  have  great  num- 
bers of  persons  in  that  condition,  without  giving  to 
the  latter  class  of  States  some  iveight  in  the  govern- 
ment proportioned  to  the  magnitude  of  their  popula- 
tions. But  they  would  not  directly  admit  the  naked 
principle  that  a slave  is  to  be  placed  in  the  same  cat- 
egory with  a freeman  for  the  purpose  of  representa- 
tion, when  he  has  no  voice  in  the  appointment  of  the 
representative ; and  the  proposition  was  rejected  by 
their  votes  and  those  of  four  other  States.1  There- 
upon the  whole  substitute  of  Mr.  Williamson,  which 
contemplated  numerical  representation  in  the  place 
of  the  combined  rule  of  numbers  and  wealth,  was 
unanimously  rejected. 

The  report  of  the  committee  of  compromise  still 
stood,  therefore,  but  modified  into  the  proposition 
of  a fixed  number  for  the  first  House  of  Representa- 
tives, and  a rule  to  be  compounded  of  the  numbers 
and  wealth  of  the  States,  to  be  applied  by  the  legis- 
lature in  adjusting  the  representation  in  future 
houses.  A difficulty,  apparently  insuperable,  had 

1 Connecticut,  Virginia,  North  Carolina,  no,  6.  South  Carolina 
Carolina,  Georgia,  ay,  4 ; Massa-  voted  in  the  negative,  for  a reason 
chusetts,  New  Jersey,  Pennsylva-  suggested  in  the  previous  note, 
nia,  Delaware,  Maryland,  South  ante,  p.  153. 


Ch.  VII.]  ADJUSTMENT  OF  THE  COMPROMISE. 


155 


defeated  the  application  of  the  simple  and  — as  it 
might  otherwise  appropriately  be  called  — the  nat- 
ural rule  of  numerical  representation.  The  social 
and  political  condition  of  the  slave,  so  totally  unlike 
that  of  the  freeman,  presented  a problem  hitherto 
unknown  in  the  voluntary  construction  of  representa- 
tive government.  It  was  certainly  true,  that,  by  the 
law  of  the  community  in  which  he  was  found,  and  by 
his  normal  condition,  he  could  have  no  voice  in  legis- 
lation. It  was  equally  true,  that  he  was  no  party 
to  the  establishment  of  any  State  constitution ; that 
nobody  proposed  to  make  him  a party  to  the  Con- 
stitution of  the  United  States,  to  confer  upon  him 
any  rights  or  privileges  under  it,  or  to  give  to  the 
Union  any  power  to  affect  or  influence  his  status  in 
a single  particular.  It  Avas  true  also,  that  the  con- 
dition in  which  he  was  held  was  looked  upon  with 
strong  disapprobation  and  dislike  by  the  people  of 
several  of  the  States,  and  it  was  not  denied  by  some 
of  the  Avisest  and  best  of  the  Southern  statesmen 
that  it  Avas  a political  and  social  evil. 

Still,  there  Avere  more  than  half  a million  of  these 
people  of  the  African  race,  distributed  among  five 
of  the  States,  performing  their  labor,  constituting 
their  peasantry,  and  — if  the  numbers  of  laborers 
in  a community  form  any  just  index  of  its  Avealth 
and  importance  — forming  in  each  of  those  States 
a most  important  element  in  its  relative  magnitude 
and  Aveight.  It  should  be  recollected,  that  the 
problem  before  the  framers  of  the  Constitution  Avas, 
not  hoAv  to  create  a system  of  representation  for  a 


156  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

single  community  possessing  in  all  its  parts  the  same 
social  institutions,  but  how  to  create  a system  in 
which  different  communities  of  mere  freemen  and 
other  different  communities  of  freemen  and  slaves 
could  be  represented,  in  a limited  government  insti- 
tuted for  certain  special  objects,  with  a proper  regard 
to  the  respective  rights  and  interests  of  those  com- 
munities, and  to  the  magnitude  of  the  stake  which 
they  would  respectively  have  in  the  legislation  by 
which  all  were  to  be  affected.1 

It  does  not  appear,  from  any  records  of  the  dis- 
cussions that  have  come  down  to  us,  in  what  way 
it  was  supposed  the  combined  rule  of  numbers  and 
wealth  could  be  applied.  If  its  application  were 
left  to  Congress,  in  adjusting  the  system  with  ref- 
erence to  slaveholding  States,  the  slaves  must  be 
counted  as  persons  or  as  property;  and  as  the  pro- 
posed rule  did  not  determine  which,  they  might  be 
treated  as  persons  in  one  census,  and  as  property  in 
the  next,  and  so  on  interchangeably.  The  suggestion 
of  the  principle,  however,  which  seemed  to  be  a just 
one,  and  which  grew  out  of  the  conflicting  opinions 
entertained  upon  the  question  whether  numbers  of 
inhabitants  are  alone  a just  index  of  the  wealth  of 
a community,  brought  into  view  a very  important 
doctrine,  that  had  long  been  familiar  to  the  Ameri- 
can people ; namely,  that  the  right  of  representa- 
tion ought  to  be  conceded  to  every  community  on 
which  a tax  is  to  be  imposed;  or,  as  one  of  the 


1 See  the  note  on  the  population  holding  States,  at  the  end  of  this 
of  the  slaveholding  and  non-slave-  chapter. 


Ch.  VII.]  ADJUSTMENT  OF  THE  COMPROMISE. 


157 


maxims  of  the  Revolutionary  period  expressed  it, 
that  “taxation  and  representation  ought  to  go  to- 
gether.” This  doctrine  was  really  applicable  to  the 
case,  and  capable  of  furnishing  a principle  that 
would  alleviate  the  difficulty ; for  if  it  could  be 
agreed  that,  in  levying  taxes  upon  a slaveholding 
State,  the  wealth  that  consisted  in  slaves  should  be 
included,  the  maxim  itself  demonstrated  the  propri- 
ety of  giving  as  large  a proportion  of  representation 
as  the  proportion  of  tax  imposed ; and  if,  in  order 
to  ascertain  the  representative  right  of  the  State,  the 
slaves  were  to  be  counted  as  persons,  and,  in  ascer- 
taining the  tax  to  be  paid,  they  were  to  be  counted 
as  property,  they  would  not  require  to  be  considered 
in  both  capacities  under  either  branch  of  the  rule. 
But  in  order  to  give  the  maxim  this  application,  it 
would  be  necessary  to  concede  that  the  numbers  of 
the  slaves  and  the  free  persons  furnished  a fair 
index  of  the  wealth  of  one  State,  as  it  was  necessary 
to  admit  that  the  numbers  of  its  free  inhabitants  fur- 
nished a fair  index  of  the  wealth  of  another  State. 
If  the  latter  were  to  be  assumed,  and  the  taxation 
imposed  upon  a State  were  regulated  by  its  num- 
bers of  people,  upon  the  idea  that  such  numbers 
fairly  represented  the  wealth  of  the  community,  it 
was  proper  to  apply  the  same  principle  to  the  slaves. 
If  this  principle  were  applied  to  the  slaves  when 
ascertaining  the  amount  of  taxes  to  be  paid,  it  ought 
equally  to  be  applied  to  them  in  ascertaining  the 
numbers  of  representatives  to  be  allowed  to  the 
State;  otherwise,  the  value  of  the  slaves  must  be 


158 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ascertained  in  some  other  way,  for  the  purposes  of 
taxation ; the  value  or  wealth  residing  in  other 
kinds  of  property  must  be  ascertained  in  the  same 
mode,  or  under  the  different  rule  of  assuming  num- 
bers of  inhabitants  as  its  index ; and  the  slaves  must 
be  excluded  as  persons  from  the  representation, 
which  they  could  only  enhance  by  being  treated  as 
taxable  property. 

These  further  difficulties  will  appear,  as  we  follow 
out  the  various  steps  taken  for  the  purpose  of  ap- 
plying the  maxim  which  connects  taxation  with 
representation.  The  rule  now  under  consideration, 
as  the  means  of  guiding  the  legislature  in  future 
distributions  of  the  right  of  representation,  was  that 
they  were  to  regulate  it  upon  a ratio  compounded 
of  the  wealth  and  numbers  of  inhabitants  of  the 
States.  Gouverneur  Morris  now  proposed  to  add  to 
this,  as  a proviso,  the  correlative  proposition,  “ that 
direct  taxation  shall  be  in  proportion  to  representa- 
tion.” This  was  adopted ; and  it  made  the  proposed 
rule  of  numbers  and  wealth  combined  applicable 
both  to  taxation  and  representation. 

But  in  truth  it  was  as  difficult  to  apply  the  com- 
bined rule  of  wealth  and  numbers  to  the  subject  of 
taxation,  as  between  the  States,  as  it  was  to  apply 
it  to  the  right  of  representation.  This  was  not  the 
first  time  in  the  history  of  the  Union  that  these  two 
subjects  had  been  considered,  and  had  been  found 
to  be  surrounded  with  embarrassments.  In  1776, 
when  the  Articles  of  Confederation  were  framed,  it 
became  necessary  to  determine  the  proportion  in 


Ch.  VII.]  TAXATION  AND  REPRESENTATION. 


159 


which  the  quotas  of  contribution  to  the  general 
treasury  should  be  assessed  upon  the  States.  Two 
obvious  rules  presented  themselves  as  alternatives; 
either  to  apportion  the  quotas  upon  an  estimate  of 
the  wealth  of  the  States,  or  to  assume  that  numbers 
of  inhabitants  of  every  condition  presented  a fair 
index  of  the  pecuniary  ability  of  a State  to  sustain 
public  burdens.  Here  again,  however,  under  either 
of  these  plans,  the  question  would  arise  as  to  the 
kind  of  property  to  be  regarded  in  the  basis  of  the 
assessment.  Should  the  slaves  be  treated  as  part  of 
the  property  of  a slaveholding  State,  either  by  a 
direct  computation,  or  by  counting  them  as  part  of 
the  population,  which  was  to  be  considered  as  the 
measure  of  its  wealth  1 Mr.  John  Adams  forcibly 
maintained  that  they  ought  not  to  be  regarded  as 
subjects  of  federal  taxation,  any  more  than  the  free 
laborers  of  the  Northern  States;  but  that  numbers 
of  inhabitants  ought  to  be  taken,  indiscriminately, 
as  the  true  index  of  the  wealth  of  each  State;  and 
that  thus  the  slave  would  stand  upon  the  same  foot- 
ing with  the  free  laborer,  both  being  regarded  as 
the  producers  of  wealth,  and  therefore  that  both 
should  add  to  the  quota  of  tax  or  contribution  to 
be  levied  upon  the  State.1 * *  Mr.  Chase,9  on  the  other 
hand,  contended  that  practically  this  rule  would  tax 
the  Northern  States  on  numbers  only,  while  it 
would  tax  the  Southern  States  on  numbers  and 

1 See  Mr.  Jefferson’s  notes  of  John  Adams’s  Works,  Vol.  II.  pp. 

this  debate  in  the  Congress  of  496-498. 

1776,  Works,  Vol.  I.  pp.  26  -30.  2 Samuel  Chase  of  Maryland. 


160 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


wealth  conjointly,  since  the  slaves  were  property  as 
well  as  persons. 

It  is  probable,  however,  that  the  slaveholding 
States  would  at  that  time  have  agreed  to  the  adop- 
tion of  numbers  as  the  basis  of  assessment,  if  the 
Northern  and  Eastern  States  could  have  consented 
to  receive  the  slaves  into  the  enumeration  in  a smaller 
ratio  than  their  whole  number.  But  it  was  insisted 
that  they  should  be  counted  equally  with  the  free 
laborers  of  the  other  States ; and  the  result  of  this 
attempt  to  solve  a complicated  and  abstruse  question 
of  political  economy  by  a theoretical  rule,  determin- 
ing that  a slave,  as  a producer  of  wealth,  stands 
upon  a precise  equality  with  a freeman  performing 
the  same  species  of  labor,  was,  that  the  Congress  of 
1776  were  driven  to  the  adoption  of  land  as  a meas- 
ure of  wealth,  instead  of  the  more  convenient  and 
practicable  rule  of  numbers.1 

But  the  Articles  of  Confederation  had  not  been 
in  operation  for  two  years,  when  it  was  found  that 
the  system  of  obtaining  supplies  for  the  general 
treasury  by  assessing  quotas  upon  the  States  accord- 
ing to  an  estimate  of  their  relative  wealth,  repre- 
sented by  the  value  of  their  lands,  was  entirely  im- 
practicable ; that  the  value  of  land  must  constantly 
be  a source  of  contention  and  dissatisfaction  between 
the  States ; and  that,  if  the  mode  of  defraying  the 
expenses  of  the  Union  by  requisitions  were  adhered 
to,  some  simpler  rule  must  be  adopted.  Accord- 
ingly, in  1783  the  Congress  were  compelled  to 

1 See  ante,  Vol.  I.  pp.  210-213. 


Ch.  VII.]  TAXATION  AND  REPRESENTATION.  161 

return  to  the  rule  of  numbers;  and  it  was  in  the 
effort  to  agree  upon  the  ratio  in  which  the  slaves 
should  enter  into  that  rule,  that  the  proportion  of 
three  fifths  was  fixed  upon,  as  a compromise  of  dif- 
ferent views,  in  the  amendment  then  proposed  to  the 
Articles  of  Confederation.1 

Such  had  been  the  previous  experience  of  the 
Union  on  the  subject  of  taxation;  and  now,  in  1787, 
when  an  effort  was  to  be  made  to  establish  a gov- 
ernment upon  a popular  representation  of  the  States 
which  had  found  it  so  difficult  to  agree  upon  a just 
and  practicable  rule  for  determining  their  propor- 
tions of  the  public  burdens,  the  whole  subject  be- 
came still  further  complicated  with  the  difficulties 
attending  the  adjustment  of  this  new  right  of  pro- 
portional representation.  The  maxim  which  would 
regulate  it  by  the  same  ratio  that  is  applied  to  the 
distribution  of  taxes,  contained  within  itself  a just 
principle;  but  it  went  no  farther  than  to  assert  a 
principle  of  justice,  and  it  left  the  subject  of  the  rule 
itself  surrounded  by  the  same  difficulties  as  before. 
The  Southern  States  complained  that  their  slaves,  if 
counted  as  property  for  the  purposes  of  taxation, 
were  to  be  so  counted  upon  a ratio  left  wholly  to 
the  discretion  of  Congress ; and  if  counted  as  num- 
bers, for  the  same  purpose,  that  they  ought  not  to  be 
reckoned  in  their  entire  number.  They  professed 
their  readiness  to  have  representation  and  taxation 

1 See  Mr.  Madison’s  notes  of  gress,  VIII.  188  (April  18,  1783). 
the  debate  in  the  Congress  of  1783,  Ante,  Vol.  I.  p.  213. 

Elliot,  V.  78  -80.  Journals  of  Con- 
21 


VOL.  II. 


162 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


regulated  by  the  same  rule,  but  they  insisted  on  the 
security  of  a definite  rule,  to  be  established  in  the 
Constitution  itself ; and  this  security,  they  said,  must 
embrace  an  admission  of  the  slaves  into  the  basis  of 
representation,  if  they  were  to  be  included  in  the 
basis  of  direct  taxation.1  Accordingly,  before  the 
rule  as  to  taxation  had  been  determined,  Randolph 
submitted  a distinct  proposition,  which  contemplated 
a census  of  the  white  inhabitants  and  of  three  fifths 
of  all  other  persons,  with  a peremptory  direction  to 
Congress  to  arrange  the  representation  accordingly. 

The  Northern  States,  on  the  other  hand,  resisted 
the  direct  introduction  of  the  slaves  into  the  repre- 
sentation, as  persons ; and  it  was  plain  that,  if  they 
were  to  be  treated  as  property,  and  the  representa- 
tion was  to  be  regulated  by  a rule  of  wealth,  their 
value  as  property  must  be  compared  with  that  of 
other  species  of  personalty  held  in  the  same  and  in 
other  States,  and  some  principles  for  computing  it 
must  be  ascertained.  Upon  such  economical  ques- 
tions as  these,  the  agreement  of  different  minds, 
under  the  influence  of  different  interests,  was  abso- 
lutely impossible. 

Thus  the  knot  of  these  complicated  difficulties 
could  only  be  cut  by  the  sword  of  compromise.  In 
whatever  direction  a theoretical  rule  was  applied,  — 
whatever  view  was  taken  of  the  slave,  as  a person 
or  as  an  article  of  property ; as  a productive  laborer 
equally  or  less  valuable  to  the  State  when  compared 

1 See  the  remarks  of  General  and  Governor  Randolph.  Elliot, 
Pinckney,  Mr.  Mason,  Mr.  Butler,  V.  294-305. 


Ch.  VII.]  TAXATION  AND  REPRESENTATION. 


163 


with  the  freeman,  — whatever  principles  were  main- 
tained upon  the  question  whether  numbers  constitute 
a proper  measure  of  the  wealth  of  a community,  and 
one  that  will  work  out  the  same  result  in  communi- 
ties where  slavery  exists,  as  well  as  where  it  is  ab- 
sent, — absolute  truth,  or  what  the  whole  country 
would  receive  as  such,  -was  unattainable.  But  an 
adjustment  of  the  problem,  founded  on  mutual  con- 
ciliation and  a desire  to  be  just,  was  not  impossible. 

The  two  objects  to  be  accomplished  were  to  avoid 
the  offence  that  might  be  given  to  the  Northern 
States  by  making  the  slaves  in  direct  terms  an  ingre- 
dient in  the  rule  of  representation,  and,  on  the  other 
hand,  to  concede  to  the  Southern  States  the  right 
to  have  their  representation  enhanced  by  the  same 
enumeration  of  their  slaves  that  might  be  adopted 
for  the  purpose  of  apportioning  direct  taxation. 
These  objects  were  effected  by  an  arrangement  pro- 
posed by  Wilson.  It  consisted,  first,  in  affirming 
the  maxim  that  representation  ought  to  be  propor- 
tioned to  direct  taxation ; and  then,  by  directing  a 
periodical  census  of  the  free  inhabitants,  and  three 
fifths  of  all  other  persons,  to  be  taken  by  the  author- 
ity of  the  United  States,  and  that  the  direct  taxation 
should  be  apportioned  among  the  States  according 
to  this  census  of  persons.  The  principle  was  thus 
established,  that,  for  the  purpose  of  direct  taxation, 
the  number  of  inhabitants  in  each  State  should  be 
assumed  as  the  measure  of  its  relative  wealth ; and 
that  its  right  of  representation  should  be  regulated 
by  the  same  measure ; and  as  the  slaves  were  to  be 


164 


FORMATION  OF  TIIE  CONSTITUTION.  [Book  IV. 


admitted  into  the  rule  for  taxation  in  the  proportion 
of  three  fifths  of  their  number  only,  — apparently 
upon  the  supposition  that  the  labor  of  a slave  is 
less  valuable  to  the  State  than  the  labor  of  a free- 
man, — so  they  were  in  the  same  proportion  only  to 
enhance  the  representation.  This  expedient  was 
adopted  by  the  votes  of  a large  majority  of  the 
States ; 1 but  since  it  had  been  moved  as  an  amend- 
ment to  the  proposition  previously  accepted,  which 
affirmed  that  the  representation  ought  to  be  regu- 
lated by  the  combined  rule  of  numbers  and  wealth, 
it  appeared,  when  brought  into  that  connection,  to 
rest  the  representation  of  the  slaveholding  States 
in  respect  to  the  slaves,  in  part  at  least,  upon  the 
idea  of  property.  To  avoid  all  discrepancy  in  the 
application  of  the  rule  to  the  two  subjects  of  repre- 
sentation and  taxation,  Governor  Randolph  proposed 
to  strike  the  word  “ wealth  ” from  the  resolution ; 
and  this,  having  been  done  by  a vote  nearly  unani- 
mous,2 left  the  enumeration  of  the  slaves  for  both 
purposes  an  enumeration  of  persons,  in  less  than 
their  whole  numbers ; placing  them  in  the  rule  for 
taxation,  not  as  property  and  subjects  of  taxation, 
but  as  constituting  part  of  an  assumed  measure  of 
the  wealth  of  a State,  just  as  the  free  inhabitants 
constituted  another  part  of  the  same  measure,  and 
placing  them  in  the  same  ratio  and  in  the  same  ca- 
pacity in  the  rule  for  representation.3 

1 Connecticut,  Pennsylvania,  2 The  only  opposition  -was  from 
Maryland,  Virginia,  North  Caro-  Delaware,  the  vote  of  which  was 
lina,  Georgia,  ay , 6 ; New  Jersey,  divided. 

Delaware,  no,  2 ; Massachusetts,  3 See  the  note  at  the  end  of  this 
South  Carolina,  divided.  chapter. 


Ch.  VII.J  REPRESENTATION  IN  THE  SENATE. 


165 


The  basis  of  the  House  of  Representatives  having 
been  thus  agreed  to,  the  remaining  part  of  the  re- 
port, which  involved  the  basis  of  the  Senate,  was  then 
taken  up  for  consideration.  Wilson,  King,  Madison, 
and  Randolph  still  opposed  the  equality  of  votes  in 
the  Senate,  upon  the  ground  that  the  government 
was  to  act  upon  the  people  and  not  upon  the  States, 
and  therefore  the  people,  not  the  States,  should  be 
represented  in  every  branch  of  it.  But  the  whole 
plan  of  representation  embraced  in  the  amended  re- 
port, including  the  equality  of  votes  in  the  Senate, 
was  adopted,  by  a bare  majority,  however,  of  the 
States  present.1 

When  this  result  was  announced,  Governor  Ran- 
dolph complained  of  its  embarrassing  effect  on  that 
part  of  the  plan  of  a constitution  which  concerned 
the  powers  to  be  vested  in  the  general  government ; 
all  of  which,  he  said,  were  predicated  upon  the  idea 
of  a proportionate  representation  of  the  States  in 
both  branches  of  the  legislature.  He  desired  an 
opportunity  to  modify  the  plan,  by  providing  for 
certain  cases  to  which  the  equality  of  votes  should 
be  confined ; and  in  order  to  enable  both  parties  to 


1 Connecticut,  New  Jersey,  Del- 
aware, Maryland,  North  Carolina 
(Mr.  Spaight,  no),  ay,  5 ; Penn-' 
sylvania,  Virginia,  South  Carolina, 
Georgia,  no,  4 ; Massachusetts  di- 
vided (Mr.  Gerry,  Mr.  Strong,  ay, 
Mr.  King,  Mr.  Gorham,  no).  The 
delegates  of  New  York  were  all 
absent ; Messrs.  Yates  and  Lansing 
left  the  Convention  on  the  5th  of 


July,  after  the  principle  of  popular 
representation  had  been  adopted. 
Colonel  Hamilton  was  absent  on 
private  business.  If  the  two  for- 
mer had  been  present,  the  vote  of 
the  State  would  doubtless  have 
been  given  in  favor  of  the  report, 
on  account  of  the  basis  which  it 
gave  to  the  Senate. 


166 


FORMATION  OF  THE  CONSTITUTION.  |Book  IV. 


consult  informally  upon  some  expedient  that  would 
bring  about  a unanimity,  he  proposed  an  adjourn- 
ment. On  the  following  morning,  we  are  told  by 
Mr.  Madison,  the  members  opposed  to  an  equality 
of  votes  in  the  Senate  became  convinced  of  the  im- 
policy of  risking  an  agreement  of  the  States  upon 
any  plan  of  government  by  an  inflexible  opposition 
to  this  feature  of  the  scheme  proposed,  and  it  was 
tacitly  allowed  to  stand.1 

Great  praise  is  due  to  the  moderation  of  those 
who  made  this  concession  to  the  fears  and  jealousies 
of  the  smaller  States.  That  it  was  felt  by  them  to 
be  a great  concession,  no  one  can  doubt,  who  con- 
siders that  the  chief  cause  which  had  brought  about 
this  convention  of  the  States  was  the  inefficiency  of 
the  “federal”  principle  on  which  the  former  Union 
had  been  established.  Looking  back  to  all  that 
had  happened  since  the  Confederation  was  formed, 
— to  the  repeated  failures  of  the  States  to  comply 
with  the  constitutional  demands  of  the  Congress, 
and  to  the  entire  impracticability  of  a system  that 
had  no  true  legislative  basis,  and  could  therefore 
exert  no  true  legislative  power,  — we  ought  not  to 
be  surprised  that  the  retention  of  the  principle  of 
an  equal  State  representation  in  any  part  of  the 
new  government  should  have  been  resisted  so  stren- 
uously and  so  long. 

That  the  final  concession  of  this  point  was  also 
a wise  and  fortunate  determination,  there  can  be  no 
doubt.  Those  who  made  it  probably  did  not  fore- 


1 Elliot,  V.  319. 


Ch.  VII.]  REPRESENTATION  IN  THE  SENATE. 


167 


see  all  its  advantages,  or  comprehend  all  its  manifold 
relations.  They  looked  to  it,  in  the  first  instance, 
as  the  means  of  securing  the  acceptance  of  the  Con- 
stitution by  all  the  States,  and  thus  of  preventing 
the  evils  of  a partial  confederacy.  They  probably 
did  not  at  once  anticipate  the  benefits  to  be  derived 
from  giving  to  a majority  of  the  States  a check  upon 
the  legislative  power  of  a majority  of  the  whole 
people  of  the  United  States.  Complicated  as  this 
check  is,  it  both  recognizes  and  preserves  the  resid- 
uary sovereignty  of  the  States ; it  enables  them  to 
hold  the  general  government  within  its  constitu- 
tional sphere  of  action ; and  it  is  in  fact  the  only 
expedient  that  could  have  been  successfully  adopted, 
to  preserve  the  State  governments,  and  to  avoid  the 
otherwise  inevitable  alternative  of  conferring  on  the 
general  government  plenary  legislative  power  upon 
all  subjects.  It  is  a part  of  the  Constitution  which 
it  is  vain  to  try  by  any  standard  of  theory;  for  it 
was  the  result  of  a mere  compromise  of  opposite 
theories  and  conflicting  interests.  Its  best  eulogimn 
is  to  be  found  in  its  practical  working,  and  in  what 
it  did  to  produce  the  acceptance  of  a constitution 
believed,  at  the  time  of  its  adoption,  to  have  given 
an  undue  share  of  influence  and  power  to  the  larger 
members  of  the  confederacy.1 

1 Mr.  Madison,  -who  was  to  the  in  the  62d  number  of  the  Federal- 
last  a strenuous  opponent  of  the  ist,  as  they  had  been  disclosed  to 
equality  of  votes  in  the  Senate,  him  by  subsequent  reflection, 
candidly  and  truly  stated  its  merits 


168 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


NOTE  ON  THE  POPULATION  OF  THE  SLAVEHOLDING 
AND  NON-SLAVEHOLDING  STATES. 

Altiiougit,  at  the  time  of  the  formation  of  the  Constitution,  slavery  had 
been  expressly  abolished  in  two  of  the  States  only  (Massachusetts  and 
New  Hampshire),  the  framers  of  that  instrument  practically  treated  all 
but  the  five  Southern  States  as  if  the  institution  had  been  already  abol- 
ished within  their  limits,  and  counted  all  the  colored  persons  therein, 
whether  bond  or  free,  as  part  of  the  free  population ; assuming  that  the 
eight  Northern  and  Middle  States  would  be  free  States,  and  that  the  five 
Southern  States  would  continue  to  be  slave  States.  This  appears  from 
the  whole  tenor  of  the  debates,  in  which  the  line  is  constantly  drawn,  as 
between  slaveholding  and  non-slaveholding  States,  so  as  to  throw  eight 
States  upon  the  Northern  and  five  upon  the  Southern  side.  I have  found 
also,  in  a newspaper  of  that  period  (New  York  Daily  Advertiser,  Febru- 
ary 5,  1788),  the  following 

“Estimate  of  the  Population  of  the  States  made  and  used 
in  the  Federal  Convention,  according  to  the  most  Accu- 
rate Accounts  they  could  obtain.” 


New  Hampshire, 

. 

102,000 

Massachusetts, 

. 

3G0,000 

Rhode  Island, 

. 

58,000 

Connecticut,  . 

. 

202,000 

New  York, 

• 

238,000 

New  Jersey,  . 

. 

138,000 

Pennsylvania, 

. 

360,000 

Delaware,  . 

37,000 

Maryland,  including  three  fifths  of  80,000  negroes, 

218,000 

Virginia,  “ “ 

280,000  “ 

420,000 

North  Carolina,  “ “ 

60,000  “ 

200,000 

South  Carolina,  “ “ 

80,000  “ 

150,000 

Georgia,  “ “ 

20,000  “ 

90,000 

1,078,000 

The  authenticity  of  this  table  is  established  by  referring  to  a speech 
made  by  General  Pinckney  in  the  legislature  of  South  Carolina,  in  which 
he  int/oduced  and  quoted  it  at  length.  (Elliot’s  Debates,  IV.  283.) 

From  this  it  appears  that  the  estimated  population  of  the  eight  North- 
ern and  Middle  States,  adopted  in  the  Convention,  was  1,495,000;  that 


Cm.  VII.  1 


POPULATION  IN  1787. 


169 


of  the  five  Southern  States  (including  three  fifths  of  an  estimated  num- 
ber of  negroes)  was  1,078,000.  Comparing  this  estimate  with  the  results 
of  the  first  census,  it  will  be  seen  that  the  total  population  of  the  eight 
Northern  and  Middle  States  exceeds  the  federal  population  of  the  five 
Southern  States,  in  the  census  of  1790,  in  about  the  same  ratio  as  the 
former  exceeds  the  latter  in  the  estimate  employed  by  the  Convention. 
Thus  in  1790  the  total  population  of  the  eight  Northern  and  Middle 
States,  including  all  slaves,  was  1,845,595;  the  federal  population  of  the 
five  Southern  States,  including  three  fifths  of  the  slaves,  was  1,540,048; 
— excess  305,547.  In  the  estimate  of  1787,  the  population  allotted  to 
the  eight  Northern  and  Middle  States  was  1,495,000;  that  allotted  to 
the  five  Southern  States,  counting  only  three  fifths  of  the  estimated  num- 
ber of  slaves,  was  1,078,000 ; — excess  in  favor  of  the  eight  States,  417,000. 
This  calculation  shows,  therefore,  that,  in  estimating  the  population  of 
the  different  States  for  the  purpose  of  adjusting  the  first  representa- 
tion in  Congress,  the  Convention  applied  the  rule  of  three  fifths  of  the 
slaves  to  the  five  Southern  States  only,  and  that  as  to  the  other  eight 
States  no  discrimination  was  made  between  the  different  classes  of  their 
inhabitants.  Other  methods  of  comparing  the  estimate  of  1787  with  the 
census  of  1790  will  lead  to  the  same  conclusion. 


VOL.  IX. 


22 


CHAPTER  Y I II. 


POWERS  OF  LEGISLATION.  — CONSTITUTION'  AND  ClIOICK  OF  TIIF. 
Exkcutive.  — Constitution  of  the  Judiciary.  — Admission 
of  New  States.  — Completion  of  the  Engagements  of 
Congress.  — Guaranty  of  Republican  Constitutions.  — 
Oath  to  Support  tiie  Constitution.  — Ratification.  — 
Number  of  Senators.  — Qualifications  for  Office.  — 
Seat  of  Government. 

Of  the  remaining  subjects  comprehended  in  the 
report  of  the  committee  of  the  whole,  it  will  only  he 
necessary  here  to  make  a brief  statement  of  the  ac- 
tion of  the  Convention,  before  we  arrive  at  the  stage 
at  which  the  principles  agreed  upon  were  sent  to  a 
committee  of  detail  to  be  cast  into  the  forms  of  a 
Constitution. 

Recurring  to  the  sixth  resolution  in  the  report  of 
the  committee  of  the  whole,  an  addition  was  made 
to  its  provisions,  by  inserting  a power  to  legislate  in 
all  cases  for  the  general  interests  of  the  Union ; and 
for  the  clause  giving  the  legislature  power  to  nega- 
tive certain  laws  of  the  States,  the  principle  was 
substituted  of  making  the  legislative  acts  and  trea- 
ties of  the  United  States  the  supreme  law  of  the 
land,  and  binding  upon  the  judiciaries  of  the  several 
States. 

The  constitution  of  the  executive  department  had 
been  provided  for,  by  declaring  that  it  should  con- 


Cn.  VIII  ] 


EXECUTIVE  DEPARTMENT. 


171 


sist  of  a single  person,  to  be  chosen  by  the  national 
legislature  for  a period  of  seven  years,  and  to  be 
ineligible  a second  time ; to  have  power  to  carry 
into  execution  the  national  laws,  to  appoint  to  of- 
fices not  otherwise  provided  for,  to  be  removable  on 
impeachment,  and  to  be  paid  for  his  services  by  a 
fixed  stipend  out  of  the  national  treasury.  The 
mode  of  constituting  this  department  did  not,  as 
in  the  case  of  the  legislative,  present  the  question 
touching  the  nature  of  the  government  described  by 
the  terms  “ federal  ” and  “ national.”  It  was  entirely 
consistent  with  either  plan,  — with  that  of  a union 
formed  by  the  States  in  their  political  capacities,  or 
with  one  formed  by  the  people  of  the  States,  or  with 
one  partaking  of  both  characters,  — that  the  execu- 
tive should  be  chosen  mediately  or  immediately  by 
the  peojile,  or  by  the  legislatures  or  executives  of 
the  States,  or  by  the  national  legislature. 

The  same  contest,  therefore,  between  the  friends 
and  opponents  of  a national  system  was  not  obliged 
to  be  renewed  upon  this  department.  So  long  as 
the  form  to  be  given  to  the  institution  was  consist- 
ent with  a system  of  republican  government,  — so 
long  as  it  provided  an  elective  magistrate,  not  ap- 
pointed by  an  oligarchy,  and  holding  by  a responsi- 
ble and  defeasible  tenure  of  office,  — whether  he 
should  be  chosen  by  the  people  of  the  States,  or  by 
some  of  their  other  public  servants,  would  not  affect 
the  principles  on  which  the  legislative  power  of  the 
government  was  to  be  founded.  But  this  very  lati- 
tude of  choice,  as  to  the  mode  of  appointment,  and 


172 


FORMATION  OF  TIIE  CONSTITUTION.  [Book  IV. 


the  duration  of  office,  opened  the  greatest  diversity 
of  opinion.  In  the  earlier  stages  of  the  formation  of 
a plan  of  government  of  three  distinct  departments, 
the  idea  of  an  election  of  the  executive  by  the  peo- 
ple at  large  was  scarcely  entertained  at  all.  It  was 
not  supposed  to  be  practicable  for  the  people  of  the 
different  States  to  make  an  intelligent  and  wise 
choice  of  the  kind  of  magistrate  then  contemplated, 
— a magistrate  whose  chief  function  was  to  be  that 
of  an  executive  agent  of  the  legislative  will.  Re- 
garding the  office  mainly  in  this  light,  without  hav- 
ing yet  had  occasion  to  look  at  it  closely  as  the  source 
of  appointments  to  other  offices  and  as  the  depositary 
of  a check  on  the  legislative  power  itself,  the  framers 
of  the  plan  now  under  consideration  had  proposed 
to  vest  the  appointment  in  the  legislature,  as  the 
readiest  mode  of  obtaining  a suitable  incumbent, 
without  the  tumults  and  risks  of  a popular  election. 
But  the  power  of  appointment  to  other  offices  and 
the  revisionary  check  on  legislation  were  no  sooner 
annexed  to  the  executive  office,  than  it  was  perceived 
that  some  provision  must  be  made  for  obviating  the 
effects  of  its  dependence  on  the  legislative  branch. 
An  executive  chosen  by  the  legislature  must  be  to  a 
great  extent  the  creature  of  those  from  whom  his 
appointment  was  derived. 

To  counteract  this  manifestly  great  inconvenience 
and  impropriety,  the  incumbent  of  the  executive 
office  was  to  be  ineligible  a second  time.  This, 
however,  was  to  encounter  one  inconvenience  by 
another,  since  the  more  faithfully  and  successfully 


Ch.  VIII.] 


ELECTION  OF  PRESIDENT. 


173 


the  duties  of  the  station  might  be  discharged,  the 
stronger  would  be  the  reasons  for  continuing  the 
individual  in  office.  The  ineligibility  was  accord- 
ingly stricken  out.  Hence  it  was,  that  a variety  of 
propositions  concerning  the  length  of  the  term  of 
office  were  attempted,  as  expedients  to  counteract 
the  evils  of  an  election  by  the  legislature  of  a mag- 
istrate who  was  to  be  re-eligible ; and  among  them 
was  one  which  contemplated  “ good  behavior  ” as 
the  sole  tenure  of  the  office.1 2  This  proposition  was 
much  considered ; it  received  the  votes  of  four  States 
out  of  ten ; 9 and  it  is  not  at  all  improbable  that  it 
would  have  received  a much  larger  support,  if  the 
supposed  disadvantages  of  an  election  by  the  people 
had  led  a majority  of  the  States  finally  to  retain  the 
mode  of  an  election  by  the  national  legislature.3 * * * * *  But 


1 Moved  by  Dr.  M’Clurg,  one  of 
the  Virginia  delegates,  and  the  per- 
son appointed  in  the  place  of  Pat- 
rick Henry,  who  declined  to  attend 
the  Convention. 

2 New  Jersey,  Pennsylvania, 
Delaware,  Virginia,  ay,  4 ; Massa- 
chusetts, Connecticut,  Maryland, 
North  Carolina,  South  Carolina, 
Georgia,  no,  6. 

3 I understand  Mr.  Madison  to 
have  voted  for  this  proposition,  and 
that  his  view  of  it  was,  that  it  might 
be  a necessary  expedient  to  pre- 

vent a dangerous  union  of  the  legis- 

lative  and  executive  departments. 

He  said  that  the  propriety  of  the 

plan  of  an  executive  during  good 

behavior  would  depend  on  the 

practicability  of  instituting  a tri- 


bunal for  impeachments,  as  certain 
and  as  adequate  in  the  case  of  the 
executive  as  in  the  case  of  the 
judges.  His  remarks,  of  course, 
were  predicated  upon  the  idea  of 
a final  necessity  for  retaining  the 
choice  of  the  executive  by  the  leg- 
islature. In  a note  to  his  “De- 
bates,” appended  to  the  vote  on 
this  question,  it  is  said : “ This 
vote  is  not  to  be  considered  as  any 
certain  index  of  opinion,  as  a num- 
ber in  the  affirmative  probably  had 
it  chiefly  in  view  to  alarm  those 
attached  to  a dependence  of  the 
executive  on  the  legislature,  and 
thereby  to  facilitate  some  final  ar- 
rangement of  a contrary  tendency. 
The  avowed  friends  of  an  execu- 
tive ‘during  good  behavior’  were 


174 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


in  consequence  of  the  impossibility  of  agreeing  upon 
a proper  length  of  term  for  an  executive  that  was  to 
he  chosen  by  the  legislature,  the  majority  of  the 
Convention  went  back  to  the  plan  of  making  the 
incumbent  ineligible  a second  time,  which  implied 
that  some  definite  term  was  to  he  adopted.  This 
again  compelled  them  to  consider  in  what  other 
mode  the  executive  could  be  appointed,  so  as  to 
avoid  the  evil  of  subjecting  the  office  to  the  unre- 
strained influence  of  the  legislature,  and  to  remove 
the  restriction  upon  the  eligibility  of  the  officer  for 
a second  term. 

In  an  election  of  the  chief  executive  magistrate 
by  the  people,  voting  directly,  the  right  of  suffrage 
would  have  to  be  confined  to  the  free  inhabitants  of 
the  several  States.  But  even  with  respect  to  the 
free  inhabitants,  the  right  of  suffrage  was  differently 


not  more  than  three  or  four,  nor  is 
it  certain  they  would  have  adhered 
to  such  a tenure.”  (Madison,  Elliot, 
V.  327.)  By  “ the  avowed  friends 
of  an  executive  during  good  behav- 
ior,” I understand  Mr.  Madison  to 
mean  those  who  would  have  pre- 
ferred that  tenure,  under  all  forms 
and  modes  of  election.  I can  trace 
in  the  debates  no  evidence  that  any 
other  person  except  Gouvemeur 
Morris  was  indifferent  to  the  mode 
in  which  the  executive  should  be 
chosen,  provided  he  held  his  place 
by  this  tenure.  Whether  Hamil- 
ton held  this  opinion,  and  adhered 
to  it  throughout,  is  a disputed  point. 
In  a letter  to  Timothy  Pickering, 
written  in  1803,  he  says  that  his 


final  opinion  was  against  an  exec- 
utive during  good  behavior,  “ on 
account  of  the  increased  danger  to 
the  public  tranquillity  incident  to 
the  election  of  a magistrate  of  this 
degree  of  permanency.”  In  proof 
of  this  view  of  the  subject,  he  re- 
marks : “ In  the  plan  of  a consti- 
tution which  I drew  up  while  the 
Convention  was  sitting,  and  which 
I communicated  to  Mr.  Madison 
about  the  close  of  it,  perhaps  a day 
or  two  after,  the  office  of  President 
has  no  longer  duration  than  for 
three  years.”  (Niles’s  Register, 
November  7,  1812.)  In  this  he 
was  probably  mistaken.  (See 
Hamilton’s  Works,  H.  401.  Mad- 
ison, Elliot,  V.  584.) 


Ch.  VIII.] 


ELECTION  OF  PRESIDENT. 


175 


regulated  in  the  different  States ; and  there  must 
either  be  a uniform  and  special  rule  established  as 
to  the  qualification  of  voters  for  the  executive  of  the 
United  States,  or  the  rule  of  suffrage  of  each  State 
must  be  adopted  for  this  as  well  as  other  national 
elections.  In  the  Northern  States,  too,  the  right  of 
suffrage  was  much  more  diffused  than  in  the  South- 
em,  and  the  question  must  arise,  as  it  had  arisen  in 
the  construction  of  the  representative  system,  whether 
the  States  were  to  possess  an  influence  in  the  choice 
of  a chief  magistrate  for  the  Union  in  proportion 
to  the  number  of  their  inhabitants,  or  only  in  pro- 
portion to  their  qualified  voters,  or  their  free  in- 
habitants. 

The  substitution  of  electors  would  obviate  these 
difficulties,  by  affording  the  means  of  determining  the 
precise  weight  in  the  election  that  should  be  allotted 
to  each  State,  without  attempting  to  prescribe  a uni- 
form rule  of  suffrage  in  the  primary  elections,  and 
without  being  obliged  to  settle  the  discrepancies 
between  the  election  laws  of  the  States.  They  fur- 
nished, also,  the  means  of  removing  the  election 
from*the  direct  action  of  the  people,  by  confiding 
the  ultimate  selection  to  a body  of  men,  to  be  chosen 
for  the  express  purpose  of  exercising  a real  choice 
among  the  eminent  individuals  who  might  be 
thought  fit  for  the  station.  But  the  mode  of  choice 
was  complicated  with  the  other  questions  of  re-eligi- 
bility,  and  especially  with  that  of  impeachment.  If 
appointed  by  electors,  there  would  be  danger  of  their 
being  corrupted  by  the  person  in  office,  if  he  were 


176 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


eligible  a second  time,  or  by  a candidate  who  had  not 
tilled  the  station.  Hence  there  would  be  a propri- 
ety in  making  the  executive  subject  to  impeach- 
ment while  in  office.  If  chosen  by  the  legislature,  it 
seemed  to  be  generally  agreed,  that  the  executive 
ought  not  to  be  eligible  a second  time  ; but  whether 
he  ought  to  be  subject  to  impeachment,  and  by  what 
tribunal,  was  a subject  on  which  there  were  great 
differences  of  opinion. 

The  consequence  of  this  great  diversity  of  views 
was,  that  the  plan  embraced  in  the  ninth  resolution 
of  the  committee  of  the  whole  was  retained  and  sent 
to  the  committee  of  detail. 

With  respect  to  the  judiciary,  several  important 
changes  were  made  in  the  plan  of  the  committee  of 
the  whole.  The  prohibition  against  any  increase 
of  salary  of  the  individuals  holding  the  office  was 
stricken  out,  and  the  restriction  was  made  applica- 
ble only  to  a diminution  of  the  salary  The  cogni- 
zance of  impeachments  of  national  officers  was  taken 
from  their  jurisdiction,  and  the  principle  was  adopted 
which  extended  that  jurisdiction  to  “ all  cases  arising 
under  the  national  laws,  and  to  such  other  questions 
as  may  involve  the  national  peace  and  harmony.” 
The  power  to  appoint  inferior  tribunals  was  con- 
firmed to  the  national  legislature. 

The  fourteenth  resolution,  providing  for  the  ad- 
mission of  new  States,  was  unanimously  agreed  to. 

The  fifteenth  resolution,  providing  for  the  contin- 
uance of  Congress  and  for  the  completion  of  their 
engagements,  was  rejected. 


Ch.  VIII.]  RATIFICATION  OF  THE  SYSTEM.  177 

The  principle  of  the  sixteenth  resolution,  which 
provided  a guaranty  by  the  United  States  of  the 
institutions  of  the  States,  was  essentially  modified. 
In  the  place  of  a guaranty  applicable  both  to  a re- 
publican constitution  and  the  “ existing  laws  ” of  a 
State,  the  declaration  was  adopted,  “ that  a repub- 
lican form  of  government  shall  be  guaranteed  to 
each  State,  and  that  each  State  shall  be  protected 
against  foreign  and  domestic  violence.”  1 

The  seventeenth  resolution,  that  provision  ought 
to  be  made  for  future  amendments,  was  adopted 
without  debate.2 

The  eighteenth  resolution,  requiring  the  legisla- 
tive, executive,  and  judicial  officers  of  the  States  to 
be  bound  by  oath  to  support  the  Articles  of  Union, 
was  then  extended  to  include  the  officers  of  the 
national  government. 

The  next  subject  that  occurred  in  the  order  of 
the  resolutions  was  that  of  the  proposed  ratification 
of  the  new  system  by  the  people  of  the  States,  acting 
through  representative  bodies  to  be  expressly  chosen 
for  this  purpose,  instead  of  referring  it  for  adoption 
to  the  legislatures  of  the  States. 

As  this  is  a subject  on  which  very  different  theo- 
ries are  maintained,  arising  partly  from  different 
views  of  the  historical  facts,  and  as  there  are  very 
different  degrees  of  importance  attached  to  the  mode 
in  which  the  framers  of  the  Constitution  provided 

1 Ante , Chap.  V.  their  seats  as  delegates  from  New 

2 At  this  point  (July  23)  John  Hampshire. 

Langdon  and  Nicholas  Gilman  took 

23 


VOL.  II. 


178 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


for  its  establishment,  it  will  be  convenient  here  to 
state  the  position  in  which  they  found  themselves 
at  this  period  in  their  deliberations,  the  purposes 
which  they  had  in  view,  and  the  steps  which  they 
took  to  accomplish  their  objects. 

They  were  engaged  in  preparing  a new  system  of 
government,  and  in  providing  for  its  introduction. 
When  they  were  first  called  together,  the  general 
purpose  of  the  States  may  seem  to  have  been  con- 
fined to  a mode  of  introducing  changes  in  the  funda- 
mental compact  of  the  Union,  such  as  was  provided 
for  by  the  Articles  of  Confederation.  But  the  Con- 
vention had  found  itself  obliged,  from  the  sheer 
necessities  of  the  country,  to  go  far  beyond  the  Con- 
federation, and  to  make  a total  change  in  the  prin- 
ciple of  the  government.  It  became,  therefore, 
necessary  for  them  to  provide  a mode  of  enacting 
or  establishing  this  change,  which  would  commend 
itself  to  the  confidence  of  the  people,  by  its  conform- 
ity with  their  previous  ideas  of  constitutional  action, 
and  be  at  the  same  time  consonant  with  reason  and 
truth. 

Again,  there  was  a peculiarity  in  their  situation, 
which  rendered  it  quite  different  from  that  of  the 
delegates  of  a people  who  had  abolished  a pre-exist- 
ing government,  and  had  assembled  a representative 
body  to  form  a new  one.  The  Confederation  still 
existed.  As  a compact  between  sovereign  States, 
providing  for  a special  mode  in  which  alterations  of 
its  articles  were  to  be  made,  and  limiting  their  adop- 
tion to  the  case  of  unanimous  consent,  it  was  still  in 


Ch.  VIII.]  RATIFICATION  OF  THE  SYSTEM. 


179 


force.  The  States,  in  their  political  capacities  as 
sovereign  communities,  were  still  the  parties  to  the 
compact,  and  their  legislatures  alone  were  clothed 
with  the  authority  to  change  its  provisions.  It  was 
necessary,  therefore,  to  encounter  and  to  solve  the 
question,  whether  a new  government,  framed  upon 
a principle  unlike  that  of  the  Confederation,  and 
embracing  an  entirely  different  legislative  authority, 
could  be  established  in  the  mode  prescribed  by  the 
existing  compact  of  the  States ; and  if  it  could  not, 
whether  there  existed  any  power,  apart  from  the 
State  governments,  by  which  it  could  be  established 
and  be  clothed  with  a paramount  authority,  resting 
on  a basis  of  principle,  and  not  upon  force,  fiction, 
or  fraud. 

In  the  early  formation  of  the  Union  that  took 
place  before  the  Declaration  of  Independence,  ques- 
tions of  the  constitutional  power  of  the  Colonies 
which  became  members  of  it  could  scarcely  arise  at 
all,  since  those  who  undertook  to  act  for  and  to  rep- 
resent the  people  of  each  Colony  were  proceeding 
upon  revolutionary  principles  and  rights.  But  be- 
fore the  Articles  of  Confederation,  which  constituted 
the  first  union  of  the  States  upon  ascertained  and 
settled  principles  of  government,  had  been  agreed 
upon,  many  of  the  State  constitutions  were  formed ; 
and  when  those  Articles  were  entered  into,  the  State 
governments  represented  the  sovereignty  of  distinct 
political  communities,  and  were  entirely  competent 
to  form  such  a confederacy  as’  was  then  established 
by  their  joint  and  unanimous  consent.  All  the 


180 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


obligations  which  the  Confederation  imposed  upon 
its  members  rested  upon  the  States  in  their  corpo- 
rate capacities ; and  the  government  of  each  of  them 
was  competent  to  assume,  for  the  State,  such  obli- 
gations, and  to  enter  into  such  stipulations.  In  the 
same  way,  it  was  competent  to  the  State  govern- 
ments to  make  alterations  in  the  Articles  of  Con- 
federation, by  unanimous  consent,  so  long  as  those 
alterations  did  not  change  the  fundamental  principle 
of  the  Union,  which  was  that  of  a system  of  legisla- 
tion for  the  States  in  their  corporate  capacities. 

But  when  it  was  proposed  to  reverse  this  principle, 
and  to  create  a government,  external  to  the  govern- 
ments of  the  States,  clothed  with  authority  to  exact 
obedience  from  the  individual  inhabitants  of  the 
States,  and  to  act  upon  them  directly,  the  question 
might  well  arise,  whether  the  State  governments  were 
competent  to  cede  such  an  authority  over  their  con- 
stituents, and  whether  it  could  be  granted  by  anybody 
but  the  people  themselves.  It  might,  it  is  true,  be 
said,  that  their  constitutions  made  the  governments 
of  the  States  the  depositaries  of  the  sovereignty  and 
political  powers  of  the  people  inhabiting  those  States. 
But  if  this  was  true,  in  a general  sense,  for  the  pur- 
pose of  exercising  the  political  powers  of  the  people, 
it  was  not  true,  in  any  sense,  for  the  purpose  of 
granting  away  those  powers  to  other  agents.  The 
latter  could  only  be  done  by  those  who  had  consti- 
tuted the  first  class  of  agents,  and  who  were  able  to 
say  that  certain  portions  of  the  authority  with  which 
they  had  been  clothed  should  be  withdrawn,  and  be 
revested  in  another  class. 


Ch.  viii.]  ratification  of  the  system. 


181 


Undoubtedly  it  would  have  been  possible  to  have 
given  the  Constitution  of  the  United  States  a theo- 
retical adoption  by  the  people  of  the  States,  by  com- 
mitting its  acceptance  to  the  State  legislatures, 
relying  on  the  acquiescence  of  the  people  in  their 
acts.  But  there  were  two  objections  to  this  course. 
The  one  was,  that  the  legislatures  were  believed  less 
likely  than  the  people  to  favor  the  establishment  of 
such  a government  as  that  now  proposed.  The 
other  was,  that  the  kind  of  legal  fiction  by  which 
the  presumed  assent  of  the  people  must  be  reached, 
in  this  mode,  would  leave  room  for  doubts  and  dis- 
putes as  to  the  real  basis  and  authority  of  the  gov- 
ernment, which  ought,  if  possible,  to  be  avoided. 

Another  difficulty  of  a kindred  nature  rendered 
it  equally  inexpedient  to  rely  on  the  sanction  of  the 
State  legislatures.  The  States,  in  their  corporate 
capacities,  and  through  the  agency  of  their  respec- 
tive governments,  were  parties  to  a federal  system, 
which  they  had  stipulated  with  each  other  should 
be  changed  only  by  unanimous  consent.  The  Con- 
stitution, which  was  now  in  the  process  of  forma- 
tion, was  a system  designed  for  the  acceptance  of 
the  people  of  all  the  States,  if  the  assent  of  all  could 
be  obtained ; but  it  was  also  designed  for  the  ac- 
ceptance of  a less  number  than  the  whole  of  the 
States,  in  case  of  a refusal  of  some  of  them ; and  it 
was  at  this  time  highly  probable  that  at  least  two 
of  them  would  not  adopt  it.  Rhode  Island  had 
never  been  represented  in  the  Convention ; and  the 
whole  course  of  her  past  history,  with  reference  to 


182 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


enlargements  of  the  powers  of  the  Union,  made  it 
quite  improbable  that  she  would  ratify  such  a plan 
of  government  as  was  now  to  be  presented  to  her. 
The  State  of  New  York  had,  through  her  delegates, 
taken  part  in  the  proceedings,  until  the  final  decis- 
ion, which  introduced  into  the  government  a system 
of  popular  representation;  but  two  of  those  dele- 
gates, entirely  dissatisfied  with  that  decision,  had 
withdrawn  from  the  Convention,  and  had  gone  home 
to  prepare  the  State  for  the  rejection  of  the  scheme.1 
The  previous  conduct  of  the  State  had  made  it  not 
at  all  unlikely  that  their  efforts  would  be  successful. 
Nor  were  there  wanting  other  indications  of  the 
most  serious  dissatisfaction,  on  the  part  of  men  of 
great  influence  in  some  of  the  other  States.  Una- 
nimity had  already  become  hopeless,  if  not  impracti- 
cable; and  it  was  necessary,  therefore,  to  look  for- 
ward to  the  event  of  an  adoption  of  the  system  by  a 
less  number  than  the  whole  of  the  States,  and  to 
make  it  practicable  for  a less  number  to  form  the 
new  Union  for  which  it  provided.  This  could  only 
be  done  by  presenting  it  for  ratification  to  the  peo- 
ple of  each  State,  who  possessed  authority  to  with- 
draw the  State  government  from  the  Confederation, 
and  to  enter  into  new  relations  with  the  people  of 
such  other  States  as  might  also  withdraw  from  the 
old  and  accept  the  new  system. 

There  was  another  and  more  special  reason  for 
resorting  to  the  direct  sanction  of  the  people  of  the 

1 See  the  letter  of  Messrs.  Yates  and  Lansing  to  Governor  Clinton, 
Elliot,  I.  480. 


Ch.  YIII.]  RATIFICATION  OF  THE  SYSTEM. 


183 


States,  which,  has  already  been  referred  to  in  general 
terms,  but  for  which  we  must  look  still  more  closely 
into  the  nature  of  the  system  proposed.  In  that 
system,  the  legislative  authority  was  to  reside  in  the 
concurrent  action  of  a majority  of  the  people  and  a 
majority  of  the  States.  How  could  the  State  gov- 
ernment of  Delaware,  for  example,  confer  upon  a 
majority  of  the  representatives  of  the  people  of  all 
the  States,  and  a majority  of  the  representatives  of  all 
the  States,  that  might  adopt  the  new  Constitution, 
power  to  bind  the  people  of  Delaware  by  a legislative 
act,  to  which  their  own  representatives  might  have 
refused  their  assent  1 The  State  government  was 
appointed  and  established  for  the  purpose  of  binding 
the  people  of  the  State  by  legislative  acts  of  their  own 
servants  and  immediate  representatives  ; but  not  for 
the  purpose  of  consenting  that  legislative  power  over 
the  people  of  that  State  should  be  exercised  by  agents 
not  delegated  by  themselves.  Yet  such  a consent 
was  involved  in  the  new  system  now  to  be  proposed, 
and  was,  in  some  way  — by  some  safe  and  compe- 
tent method  — to  be  obtained.  A legislative  power 
was  to  be  created  by  the  assembling  in  one  branch 
of  the  representatives  of  the  people  of  all  the  States, 
in  proportion  to  their  numbers,  and  in  the  other 
branch  by  assembling  an  equal  number  of  represent- 
atives of  each  State,  without  regard  to  its  numbers 
of  people.  The  authority  of  law,  upon  all  subjects 
that  might  be  committed  to  this  legislative  power, 
was  to  attend  the  acts  of  concurring  majorities  in 
both  branches,  even  against  the  separate  and  adverse 


184 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


will  of  the  minority.  It  was  impossible  to  rest  this 
authority  upon  any  other  basis  than  that  of  the  rati- 
fication of  the  system  by  the  people  of  each  State,  to 
be  given  by  themselves  in  primary  assemblies,  or  by 
delegates  expressly  chosen  in  such  assemblies,  and 
appointed  to  give  it,  if  they  should  see  fit.  A system 
founded  on  the  consent  of  the  legislatures  would  be 
a treaty  between  sovereign  States  ; a system  founded 
on  the  consent  of  the  people  would  be  a constitution 
of  government,  ordained  by  those  who  hold  and  ex- 
ercise all  political  power.1 

There  were  not  wanting,  however,  strong  advo- 
cates of  a reference  to  the  State  legislatures  ; and  the 
votes  of  three  of  the  States  were  at  first  given  for 
that  mode  of  ratifying  the  Constitution;  but  the 
other  plan  was  finally  adopted  with  nearly  unani- 
mous consent.2 


1 There  seems  to  be  a sound 
distinction  between  the  two,  which 
was  pointed  out  by  Mr.  Madison. 
He  said  that  “he  considered  the 
difference  between  a system  found- 
ed on  the  legislatures  only,  and  one 
founded  on  the  people,  to  be  the 
true  difference  between  a league, 
or  treaty,  and  a constitution.  The 
former,  in  point  of  moral  obligation , 
might  be  as  inviolable  as  the  latter. 
In  point  of  political  operation,  there 
were  two  important  distinctions  m 
favor  of  the  latter.  First,  a [State] 
law  violating  a treaty  ratified  by  a 
pre-existing  [State]  law  might  be 
respected  by  the  judges  as  a law, 

though  an  unwise  or  perfidious 
one.  A [State]  law  violating  a 


constitution  established  by  the  peo- 
ple themselves  would  be  consid- 
ered by  the  judges  as  null  and 
void.  Secondly,  the  doctrine  laid 
down  by  the  law  of  nations  in  the 
case  of  treaties  was,  that  a breach 
of  any  one  article  by  any  of  the 
parties  freed  the  other  parties  from 
their  engagements.  In  the  case 
of  a union  of  people  under  one 
constitution,  the  nature  of  the  pact 
had  always  been  understood  to 
exclude  such  an  interpretation.” 
Elliot,  V.  355,  356. 

2 Connecticut,  Delaware,  and 
Maryland  voted  for  an  amend- 
ment to  the  original  resolution, 
which,  if  adopted,  would  have  sub- 
mitted the  Constitution  to  the  State 


Ch.  vin.] 


COMPLETION  OF  THE  REPORT. 


185 


Still,  the  resolution  under  consideration  contained 
a feature  which  wisely  provided  for  the  assent  of 
the  existing  Congress  to  the  changes  that  were  to 
be  made  by  the  establishment  of  the  new  system. 
It  proposed  that  the  plan  of  the  new  Constitution 
should  be  first  submitted  to  Congress  for  its  appro- 
bation, and  that  the  legislatures  of  the  States  should 
then  recommend  to  the  people  to  institute  assem- 
blies to  consider  and  decide  on  its  adoption.  These 
steps  were  to  be  taken,  in  pursuance  of  the  course 
marked  out  when  the  Convention  was  called.  The 
resolution  of  Congress,  which  recommended  the  Con- 
vention, required  that  the  alterations  which  it  might 
propose  should  be  “ agreed  to  in  Congress  and  con- 
firmed by  the  States  ” ; and  such  was  the  tenor  of  the 
instructions  given  to  the  delegates  of  most  of  the 
States.  This  direction  would  be  substantially  com- 
plied with,  if  the  legislatures,  on  receiving  and  con- 
sidering the  system,  should  recommend  to  the  people 
to  appoint  representative  bodies  to  consider  and  de- 
cide on  its  adoption,  and  the  people  should  so  adopt 
and  ratify  it.1 

The  topics  covered  by  the  report  of  the  committee 
of  the  whole  had  thus  been  passed  upon  in  the  Con- 
vention, and  the  outline  of  the  Constitution  had 
been  framed.  There  remained  only  three  subjects 
on  which  it  would  be  necessary  to  act  in  order  to 

legislatures.  The  resolution  to  re-  1 For  the  history  of  the  proceed- 
fer  it  to  assemblies  chosen  for  the  ings  relating  to  the  institution  of 
purpose  by  the  people,  was  subse-  the  national  Convention,  see  Ante , 
quently  adopted,  with  the  dissent  Vol.  I.  Book  III.  Chap.  VI. 
of  one  State  only,  Delaware. 
vol.  ii.  24 


186 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


provide  for  a complete  scheme  of  government.  It 
was  necessary  to  determine  the  number  of  senators 
to  which  each  State  should  be  entitled ; to  ascertain 
the  qualifications  of  members  of  the  government; 
and  to  determine  at  what  place  the  government 
should  be  seated. 

The  number  of  senators  was  not  agreed  upon  at 
the  time  when  the  principle  of  an  equal  representa- 
tion of  the  States  in  the  Senate  was  adopted ; and 
it  had  not  been  determined  in  what  method  they 
were  to  vote.  It  was  now  settled  that  the  Senate 
should  consist  of  two  members  from  each  branch, 
and  that  they  should  vote  per  capita.  To  this  ar- 
rangement one  State  only  dissented.  The  vote  of 
Maryland  was  given  against  it,  through  the  influ- 
ence of  Luther  Martin,  who  considered  this  method 
of  voting  a departure  from  the  idea  of  the  States 
being  represented  in  the  Senate.  But  this  objection 
was  obviously  unsound ; for  although,  by  this  method 
of  voting,  the  influence  of  a State  may  be  divided, 
its  members  have  the  poiver  to  concur,  and  to  make 
the  vote  of  the  State  more  effectual  than  it  would 
be  if  it  had  only  a single  suffrage. 

The  subject  of  the  qualifications  to  be  required  of 
the  executive,  the  judiciary,  and  the  members  of 
both  branches  of  the  legislature,  went  to  the  com- 
mittee of  detail  in  a form  which  was  subsequently 
modified  in  a very  important  particular  It  was  at 
first  proposed,1  that  landed  property,  as  well  as  citi- 
zenship in  the  United  States,  should  be  embraced  in 


1 By  Mason. 


Ch.  VIIL] 


PROPERTY  QUALIFICATION. 


187 


the  qualifications.  But  there  were  solid  objections 
to  this  requirement,  founded  on  the  circumstances 
of  the  country  and  the  nature  of  a republican  con- 
stitution. So  far  as  the  people  of  the  United  States 
could  be  said  to  be  divided  into  classes,  the  principal 
divisions  related  to  the  three  occupations  of  agricul- 
ture, commerce,  and  manufactures  of  all  kinds,  in- 
cluding in  the  latter  all  who  exercised  the  mechanic 
arts.  As  a general  rule,  it  was  supposed  at  that  time 
to  be  true,  that  the  commercial  and  manufacturing 
classes  held  very  little  landed  property ; and  that  al- 
though they  were  much  less  numerous  than  the  agri- 
cultural class,  yet  that  they  were  likely  to  increase 
in  a far  greater  ratio  than  they  had  hitherto.  Prac- 
tically, therefore,  to  require  a qualification  of  landed 
property,  would  be  to  give  the  offices  of  the  general 
government  to  the  agricultural  interest.  These  con- 
siderations led  the  Convention,  by  a nearly  unani- 
mous vote,  to  reject  the  proposition  for  a landed 
qualification.1 

Very  serious  doubts  were  also  entertained,  wheth- 
er, in  constructing  a republican  constitution,  it  was 
proper  to  pay  so  much  deference  to  distinctions  of 
wealth  as  would  be  implied  by  the  adoption  of  any 
property  qualification  for  office.  There  are  two 
methods  in  which  the  interests  of  property  may  be 
secured,  in  the  organization  of  a representative  gov- 
ernment. It  may  be  required  as  a qualification, 
either  of  the  elector  or  the  elected,  that  the  individ- 
ual shall  possess  a certain  amount  of  property.  But 

1 Maryland  alone  voted  to  retain  it. 


188 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


it  seems  scarcely  consistent  with  the  spirit  of  a re- 
publican constitution,  that  this  should  be  made  a 
qualification  for  holding  office,  although  it  may  be 
quite  proper  to  require  some  degree  of  property,  or 
its  equivalent  evidence  of  moral  fitness,  as  a quali- 
fication for  the  right  of  choosing  to  office.  The 
solid  reason  for  a distinction  is,  that,  in  order  to  have 
a property  qualification  for  office  at  all  efficient,  or 
even  of  any  perceptible  operation,  it  must  be  made 
so  large  that  it  will  tend  to  exclude  persons  of  real 
talent,  or  even  the  highest  capacity  for  the  public 
service.  Whereas,  a property  qualification  may 
be  applied  to  the  exercise  of  the  elective  fran- 
chise, by  requiring  so  small  an  amount  that  it  will 
practically  exclude  but  few  who  possess  the  moral 
requisites  for  its  intelligent  and  honest  use ; and  even 
to  this  extent  the  operation  of  such  a rule  may  be, 
as  it  is  in  some  well-governed  communities,  greatly 
relieved,  by  substituting  for  the  positive  possession 
of  any  amount  of  property,  that  species  of  evidence 
of  moral  fitness  for  the  right  of  voting  that  is  im- 
plied by  the  capacity  to  pay  a very  small  portion  of 
the  public  burdens.1 

At  the  present  stage,  however,  of  the  formation 
of  the  Constitution  of  the  United  States,  the  opin- 
ions of  a majority  of  the  States  were  in  favor  of  a 
property  qualification  for  office,  as  well  as  a require- 
ment of  citizenship;  and  the  committee  of  detail 

1 As  in  the  State  of  Massachu-  payment  of  an  annual  poll-tax  of 
setts;  where  the  sole  money  quali-  $ 1.25,  or  about  five  shillings  sler- 
fication  required  of  a voter  is  the  ling. 


Ch.  VIII.] 


GENERAL  PINCKNEY’S  NOTICE. 


189 


were  instructed  accordingly,  with  the  dissent  of  only 
three  of  the  States.1  But,  as  we  shall  afterwards 
find,  another  view  of  the  subject  finally  prevailed.2 

No  definite  action  was  had,  at  this  stage,  upon  the 
subject  of  a seat  of  the  national  government ; but  it 
was  almost  unanimously  agreed  to  be  the  general 
sense  of  the  country,  that  it  ought  not  to  be  placed 
at  the  seat  of  any  State  government,  or  in  any  large 
commercial  city ; and  that  provision  ought  to  be 
made  by  Congress,  as  speedily  as  possible,  for  the 
establishment  of  a national  seat  and  the  erection 
of  suitable  public  buildings. 

Such  was  the  character  of  the  system  sent  to  a 
committee  of  detail,  to  be  put  into  the  form  of  a 
constitution.3  Before  it  was  sent  to  them,  however, 
a notice  was  given  by  an  eminent  Southern  member, 
which  looked  to  the  introduction  of  provisions  not 
yet  contemplated  or  discussed.  According  to  Mr. 
Madison’s  minutes,  General  Pinckney  rose  and  re- 
minded the  Convention,  that,  if  the  committee  should 
fail  to  insert  some  security  to  the  Southern  States 
against  an  emancipation  of  slaves,  and  taxes  on 
exports,  he  should  be  bound  by  duty  to  his  State  to 
vote  against  their  report.4 


1 Connecticut,  Pennsylvania, 
and  Delaware. 

2 See  the  title  “ Qualifications  ” 
in  the  Index. 

3 The  committee  of  detail,  ap- 

pointed July  24,  consisted  of 
Messrs.  Rutledge,  Randolph,  Gor- 
ham, Ellsworth,  and  Wilson.  El- 
liot, V.  357. 


4  By  a security  against  an  eman- 
cipation of  slaves,  General  Pinck- 
ney meant  some  provision  for  their 
extradition  in  cases  of  escape  into 
the  free  States.  This  is  apparent 
from  the  history  of  the  extradition 
clause;  and  it  is  upon  the  notice 
thus  given  by  him,  and  the  action 
had  upon  this  clause,  that  the  state- 


190 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  resolutions  as  adopted  by  the  Convention,  to- 
gether with  the  propositions  offered  by  Mr.  Charles 
Pinckney  on  the  29  th  of  May,  and  those  offered  by 
Mr.  Patterson  on  the  15  th  of  June,  were  then  referred 
to  a committee  of  detail.1 


ment  often  made,  which  assumes 
that  the  Constitution  could  not  have 
been  established  without  some  pro- 
vision on  this  subject — as  well  as 
upon  general  reasoning  from  the 
circumstances  of  the  case  — rests 
for  its  proof.  See  as  to  the  origin 
and  history  of  the  extradition  clause, 
post , p.  450. 

1 The  resolutions,  as  referred, 
were  as  follows : — 

“1.  Resolved,  That  the  govern- 
ment of  the  United  States  ought  to 
consist  of  a supreme  legislative,  ju- 
diciary, and  executive. 

“ 2.  Resolved,  That  the  legisla- 
ture consist  of  two  branches. 

“ 3.  Resolved,  That  the  members 
of  the  first  branch  of  the  legislature 
ought  to  be  elected  by  the  people  of 
the  several  States  for  the  term  of 
two  years;  to  be  paid  out  of  the 
public  treasury ; to  receive  an  ade- 
quate compensation  for  their  servi- 
ces : to  be  of  the  age  of  twenty-five 
years  at  least ; to  be  ineligible  to, 
and  incapable  of  holding,  any  office 
under  the  authority  of  the  United 
States,  (except  those  peculiarly  be- 
lon<iin<r  to  the  functions  of  the  first 
branch,)  during  the  term  of  service 
of  the  first  branch. 

“ 4.  Resolved,  That  the  members 
of  the  second  branch  of  the  legisla- 
ture of  the  United  States  ought  to 
be  chosen  by  the  individual  legisla- 


tures ; to  be  of  the  age  of  thirty  years 
at  least;  to  hold  their  offices  for  six 
years,  one  third  to  go  out  biennially ; 
to  receive  a compensation  for  the 
devotion  of  their  time  to  the  public 
service ; to  be  ineligible  to,  and  in- 
capable of  holding,  any  office  under 
the  authority  of  the  United  States, 
(except  those  peculiarly  belong- 
ing to  the  functions  of  the  second 
branch,)  during  the  term  for  which 
they  are  elected,  and  for  one  year 
thereafter. 

“ 5.  Resolved,  that  each  branch 
ought  to  possess  the  right  of  origi- 
nating acts. 

“6.  Resolved,  That  the  national 
legislature  ought  to  possess  the  legis- 
lative rights  vested  in  Congress  by 
the  Confederation ; and,  moreover, 
to  legislate  in  all  cases  for  the  gen- 
eral interests  of  the  Union,  and  also 
in  those  to  which  the  States  are 
separately  incompetent,  or  in  which 
the  harmony  of  the  United  States 
may  be  interrupted  by  the  exercise 
of  individual  legislation. 

“ 7.  Resolved,  That  the  legisla- 
tive acts  of  the  United  States,  made 
by  virtue  and  in  pursuance  of  the 
Articles  of  Union,  and  all  treaties 
made  and  ratified  under  the  author- 
ity of  the  United  States,  shall  be 
the  supreme  law  of  the  respective 
States,  as  far  as  those  acts  or  trea- 
ties shall  relate  to  the  said  States, 


Ch.  YIII.]  outline  oe  the  constitution. 


191 


or  their  citizens  and  inhabitants; 
and  that  the  judiciaries  of  the  sev- 
eral States  shall  be  bound  thereby 
in  their  decisions,  anything  in  the 
respective  laws  of  the  individual 
States  to  the  contrary  notwith- 
standing. 

“ 8.  Resolved,  That,  in  the  origi- 
nal formation  of  the  legislature  of 
the  United  States,  the  first  branch 
thereof  shall  consist  of  sixty-five 
members ; of  which  number,  New 
Hampshire  shall  send  three;  Mas- 
sachusetts, eight ; Rhode  Island, 
one;  Connecticut,  five;  New  York, 
six;  New  Jersey,  four;  Pennsyl- 
vania, eight ; Delaware,  one ; Ma- 
ryland, six ; Virginia,  ten  ; North 
Carolina,  five ; South  Carolina,  five : 
Georgia,  three.  But  as  the  present 
situation  of  the  States  may  probably 
alter  in  the  number  of  their  inhab- 
itants, the  legislature  of  the  United 
States  shall  be  authorized,  from  time 
to  time,  to  apportion  the  number  of 
representatives ; and  in  case  any  of 
the  States  shall  hereafter  be  divided, 
or  enlarged  by  addition  of  territory, 
or  any  two  or  more  States  united, 
or  any  new  States  created  within 
the  limits  of  the  United  States,  the 
legislature  of  the  United  States 
shall  possess  authority  to  regulate 
the  number  of  representatives,  in 
any  of  the  foregoing  cases,  upon  the 
principle  of  their  number  of  inhab- 
itants, according  to  the  provisions 
hereafter  mentioned,  namely : Pro- 
vided always,  that  representation 
ought  to  be  proportioned  to  direct 
taxation.  And  in  order  to  ascertain 
the  alteration  in  the  direct  taxation 
which  may  be  required  from  time  to 
time  by  the  changes  in  the  relative 
circumstances  of  the  States,  — 


“ 9.  Resolved,  That  a census  be 
taken  within  six  years  from  the 
first  meeting  of  the  legislature  of 
the  United  States,  and  once  within 
the  term  of  every  ten  years  after- 
wards, of  all  the  inhabitants  of  the 
United  States,  in  the  manner  and 
according  to  the  ratio  recommended 
by  Congress  in  their  resolution  of 
the  18th  of  April,  1783;  and  that 
the  legislature  of  the  United  States 
shall  proportion  the  direct  taxation 
accordingly. 

“ 10.  Resolved,  That  all  bills  for 
raising  or  appropriating  money,  and 
for  fixing  the  salaries  of  the  officers 
of  the  government  of  the  United 
States,  shall  originate  in  the  first 
branch  of  the  legislature  of  the 
United  States,  and  shall  not  be  al- 
tered or  amended  by  the  second 
branch ; and  that  no  money  shall 
be  drawn  from  the  public  treasury, 
but  in  pursuance  of  appropria- 
tions to  be  originated  by  the  first 
branch. 

“ 11.  Resolved,  That,  in  the  sec- 
ond branch  of  the  legislature  of  the 
United  States,  each  State  shall  have 
an  equal  vote. 

“ 12.  Resolved,  That  a national 
executive  be  instituted,  to  consist 
of  a single  person ; to  be  chosen  by 
the  national  legislature,  for  the  term 
of  seven  years;  to  be  ineligible  a 
second  time ; with  power  to  carry 
into  execution  the  national  laws; 
to  appoint  to  offices  in  cases  not 
otherwise  provided  for;  to  be  remov- 
able on  impeachment,  and  convic- 
tion of  malepractice  or  neglect  of 
duty ; to  receive  a fixed  compensa- 
tion for  the  devotion  of  his  time  to 
the  public  service,  to  be  paid  out  of 
the  public  treasury. 


192 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


“13.  Resolved,  That  the  national 
executive  shall  have  a right  to  neg- 
ative any  legislative  act ; which  shall 
not  be  afterwards  passed,  unless  by 
two  third  parts  of  each  branch  of 
the  national  legislature. 

“ 14.  Resolved , That  a national 
judiciary  be  established,  to  consist 
of  one  supreme  tribunal,  the  judges 
of  which  shall  be  appointed  by  the 
second  branch  of  the  national  legis- 
lature ; to  hold  their  offices  during 
good  behavior;  to  receive  punctu- 
ally, at  stated  times,  a fixed  compen- 
sation for  their  services,  in  which 
no  diminution  shall  be  made  so  as 
to  affect  the  persons  actually  in 
office  at  the  time  of  such  dimi- 
nution. 

“ 15.  Resolved,  That  the  national 
legislature  be  empowed  to  appoint 
inferior  tribunals. 

“16.  Resolved,  That  the  jurisdic- 
tion of  the  national  judiciary  shall 
extend  to  cases  arising  under  laws 
passed  by  the  general  legislature; 
and  to  such  other  questions  as  in- 
volve the  national  peace  and  har- 
mony. 

“ 1 7.  Resolved , That  provision 
ought  to  be  made  for  the  admission 
of  States  lawfully  arising  within  the 
limits  of  the  United  States,  whether 
from  a voluntary  junction  of  govern- 
ment and  territory,  or  otherwise, 
with  the  consent  of  a number  of 
voices  in  the  national  legislature  less 
than  the  whole. 

“18.  Resolved,  That  a republican 
form  of  government  shall  be  guar- 
anteed to  each  State ; and  that  each 


State  shall  be  protected  against  for- 
eign and  domestic  violence. 

“ 1 9.  Resolved,  That  provision 
ought  to  be  made  for  the  amendment 
of  the  Articles  of  Union,  whenso- 
ever it  shall  seem  necessary. 

“ 20.  Resolved,  That  the  legisla- 
tive, executive,  and  judiciary  pow- 
ers, within  the  several  States,  and 
of  the  national  government,  ought 
to  be  bound,  by  <mth,  to  support  the 
Articles  of  Union. 

“21.  Resolved,  That  the  amend- 
ments which  shall  be  offered  to  the 
Confederation  by  the  Convention 
ought,  at  a proper  time  or  times, 
after  the  approbation  of  Congress, 
to  be  submitted  to  an  assembly  or 
assemblies  of  representatives,  rec- 
ommended by  the  several  legisla- 
tures, to  be  expressly  chosen  by 
the  people  to  consider  and  decide 
thereon. 

“22.  Resolved,  That  the  repre- 
sentation in  the  second  branch  of 
the  legislature  of  the  United  States 
shall  consist  of  two  members  from 
each  State,  who  shall  vote  per 
capita. 

“ 23.  Resolved,  That  it  be  an  in- 
struction to  the  committee  to  whom 
were  referred  the  proceedings  of 
the  Convention  for  the  establish- 
ment of  a national  government,  to 
receive  a clause,  or  clauses,  requir- 
ing certain  qualifications  of  prop- 
erty and  citizenship  in  the  United 
States,  for  the  executive,  the  judi- 
ciary, and  the  members  of  both 
branches  of  the  legislature  of  the 
United  States.” 


CHAPTER  IX. 


Report  of  the  Committee  of  Detail.  — Construction  of 
the  Legislature.  — Time  and  Place  of  its  Meeting. 

Having  now  reached  that  stage  in  the  process  of 
framing  the  Constitution  at  which  certain  principles 
were  confided  to  a committee  of  detail,  the  reader 
will  now  have  an  opportunity  to  observe  the  farther 
development  and  application  of  those  principles,  the 
mode  in  which  certain  chasms  in  the  system  were 
supplied,  and  the  final  arrangements  which  produced 
the  complete  instrument  that  was  submitted  to  the 
people  of  the  United  States  for  their  adoption. 

Great  power  was  necessarily  confided  to  a com- 
mittee, to  whom  was  intrusted  the  first  choice  of 
means  and  of  terms  that  were  to  give  practical  effect 
to  the  principles  embraced  in  the  resolutions  of  the 
Convention.  There  might  be  a substantial  compli- 
ance with  the  intentions  previously  indicated  by  the 
debates  and  votes  of  the  Convention,  and  at  the 
same  time  the  mode  in  which  those  intentions 
should  be  carried  out  by  the  committee  might  re- 
quire a new  consideration  of  the  subjects  involved. 
Hence  it  is  important  to  pursue  the  growth  of  the 
Constitution  through  the  entire  proceedings. 

25 


YOL.  II. 


194 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  committee  of  detail  presented  their  report  on 
the  6th  of  August,  in  the  shape  of  a Constitution 
divided  into  three-and-twenty  Articles.  It  is  not 
my  purpose  to  examine  this  instrument  in  the  pre- 
cise order  of  its  various  provisions,  or  to  describe  all 
the  discussions  which  took  place  upon  its  minute 
details.  It  is  more  consonant  with  the  general  pur- 
pose of  this  history,  to  group  together  the  different 
features  of  the  Constitution  which  relate  to  the 
structure  and  powers  of  the  different  departments 
and  to  the  fundamental  purposes-  of  the  new  govern- 
ment.1 

In  accordance  with  the  previous  decisions  of  the 
Convention,  the  committee  of  detail  had  provided 
that  the  legislative  power  of  the  United  States 
should  be  vested  in  a Congress,  to  consist  of  two 
branches,  a House  of  Representatives  and  a Senate, 
each  of  which  should  have  a negative  on  the  other. 
But  as  to  the  persons  by  whom  the  members  of  the 
national  legislature  were  to  be  appointed,  no  decis- 
ion had  been  made  in  the  Convention,  excepting 
that  the  members  of  the  House  were  to  be  chosen 
by  the  people  of  the  States,  and  the  members  of  the 
Senate  by  their  legislatures.  Nothing  had  been 
settled  respecting  the  qualifications  of  the  electors 
of  representatives  ; nor  had  the  qualifications  of  the 
members  of  either  branch  been  determined.9  Two 

1 The  first  draft  of  the  Constitu-  given  to  report  “ certain  qualifica- 

tion, reported  by  the  committee  of  tions  of  property  and  citizenship,” 
detail,  will  be  found  in  the  Ap-  for  the  executive,  the  judiciary, 
pendix.  and  the  members  of  both  houses  of 

2 A general  instruction  had  been  Congress. 


Ch.  IX.] 


FOREIGN-BORN  INHABITANTS. 


195 


great  questions,  therefore,  remained  open ; first, 
with  what  class  of  persons  was  the  election  of  mem- 
bers of  the  popular  branch  of  the  legislature  to  be 
lodged ; secondly,  what  persons  were  to  be  eligible 
to  that  and  to  the  other  branch.  In  substance, 
these  questions  resolved  themselves  into  the  inquiry, 
in  whom  was  the  power  of  governing  America  to 
be  vested  ; for  it  is  to  be  remembered  that,  according 
to  a decision  of  the  Convention  not  yet  reversed,  the 
national  executive  was  to  be  chosen  by  the  national 
legislature. 

So  far  as  the  people  of  the  United  States  had 
evinced  any  distinct  purpose,  at  the  time  when  this 
Convention  was  assembled,  it  appeared  to  be  well 
settled  that  the  new  system  of  government,  whatever 
else  it  might  be,  should  be  republican  in  its  form 
and  spirit.  When  the  States  had  assembled  in  Con- 
vention, it  became  the  result  of  a necessary  compro- 
mise between  them,  that  the  appointment  of  one 
branch  of  the  legislature  should  be  vested  in  the 
people  of  the  several  States.  But  who  were  to  be  re- 
garded as  the  people  of  a State,  for  this  purpose,  was 
a question  of  great  magnitude,  now  to  be  considered. 

The  situation  of  the  country,  in  reference  to  this 
as  well  as  to  many  other  important  questions,  was 
peculiar.  The  streams  of  emigration,  which  began 
to  flow  into  it  from  Europe  at  the  first  settlement  of 
the  different  Colonies,  had  been  interrupted  only  by 
the  war  of  the  Revolution.  On  the  return  of  peace, 
the  tide  of  emigration  again  began  to  set  towards 
the  new  States,  which  had  risen  into  independent 


196 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


existence  on  the  western  shores  of  the  Atlantic  by  a 
struggle  for  freedom  that  had  attracted  the  attention 
of  the  whole  civilized  world ; and  when  the  Consti- 
tution of  the  United  States  was  about  to  be  framed, 
large  and  various  classes  of  individuals  in  the  differ- 
ent countries  of  Europe  were  eagerly  watching  the 
result  of  the  experiment.  It  appeared  quite  certain 
that  great  accessions  of  population  would  follow  the 
establishment  of  free  institutions  in  America,  if  they 
should  be  framed  in  a liberal  and  comprehensive 
spirit.  It  became  necessary,  therefore,  to  meet  and 
provide  for  the  presence  in  the  country  of  great 
masses  of  persons  not  born  upon  the  soil,  who  had 
not  participated  in  the  efforts  by  which  its  freedom 
had  been  acquired,  and  who  would  bring  with  them 
widely  differing  degrees  of  intelligence  and  of  fitness 
to  take  part  in  the  administration  of  a free  govern- 
ment. The  place  that  was  to  be  assigned  to  these 
persons  in  the  political  system  of  the  country  was 
a subject  of  much  solicitude  to  its  best  and  most 
thoughtful  statesmen. 

On  the  one  hand,  all  were  aware  that  there  ex- 
isted among  the  native  populations  of  the  States  a 
very  strong  American  feeling,  engendered  by  the 
war,  and  by  the  circumstances  attending  its  com- 
mencement, its  progress,  and  its  results.  It  was  a 
war  begun  and  prosecuted  for  the  express  purpose 
of  obtaining  and  securing,  for  the  people  who  under- 
took it,  the  right  of  self-government.  It  necessarily 
created  a great  jealousy  of  foreign  influence,  whether 
exerted  by  governments  or  individuals,  and  a strong 


Ch.  IX.] 


FOREIGN-BORN  INHABITANTS. 


197 


fear  that  individuals  would  be  made  the  agents  of 
governments  in  the  exercise  of  such  influence.  The 
political  situation  of  the  country  under  the  Confed- 
eration had  increased  rather  than  diminished  these 
apprehensions.  The  relations  of  the  States  with 
each  other  and  with  foreign  nations,  under  a system 
which  admitted  of  no  efficient  national  legislation 
binding  upon  all  alike,  afforded,  or  were  believed  to 
afford,  means  by  which  the  policy  of  other  countries 
could  operate  on  our  interests  with  irresistible  force. 

There  was,  therefore,  among  the  people  of  the 
United  States,  and  among  their  statesmen  who  were 
intrusted  with  the  formation  of  the  Constitution,  a 
firmly  settled  determination,  that  the  institutions 
and  legislation  of  the  country  should  be  effectually 
guarded  against  foreign  control  or  interference. 

On  the  other  hand,  it  was  extremely  important 
that  nothing  should  be  done  to  prevent  the  immi- 
gration from  Europe  of  any  classes  of  men  who 
were  likely  to  become  useful  citizens.  The  States 
which  had  most  encouraged  such  immigration  had 
advanced  most  rapidly  in  population,  in  agriculture, 
and  the  arts.  There  were,  too,  already  in  the  coun- 
try many  persons  of  foreign  birth,  who  had  thor- 
oughly identified  themselves  with  its  interests  and 
its  fate,  who  had  fought  in  its  battles,  or  contributed 
of  their  means  to  the  cause  of  its  freedom ; and 
some  of  these  men  were  at  this  very  period  high  in 
the  councils  of  the  nation,  and  even  occupied  places 
of  great  importance  in  the  Convention  itself.1  They 

1 It  is  only  necessary  to  mention  the  names  of  Hamilton,  Wilson,  Rob- 


198 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


had  been  made  citizens  of  the  States  in  which  they 
resided,  by  the  State  power  of  naturalization ; and 
they  were  in  every  important  sense  Americans.  It 
was  impossible,  therefore,  to  adopt  a rule  that  would 
confine  the  elective  franchise,  or  the  right  to  be 
elected  to  office,  to  the  native  citizens  of  the  States. 
The  States  themselves  had  not  done  this;  and  the 
institutions  of  the  United  States  could  not  rest  on  a 
narrower  basis  than  the  institutions  of  the  States. 

Another  difficulty  which  attended  the  adjustment 
of  the  right  of  suffrage  grew  out  of  the  widely  dif- 
fering qualifications  annexed  to  that  right  under  the 
State  constitutions,  and  the  consequent  dissatisfac- 
tion that  must  follow  any  effort  to  establish  distinct 
or  special  qualifications  under  the  national  Consti- 
tution. In  some  of  the  States,  the  right  of  voting 
was  confined  to  “ freeholders  ” ; in  others,  — and  by 
far  the  greater  number,  — it  was  extended  beyond 
the  holders  of  landed  property,  and  included  many 
other  classes  of  the  adult  male  population ; while 
in  a few,  it  embraced  every  male  citizen  of  full  age 
who  was  raised  at  all  above  the  level  of  the  pauper 
by  the  smallest  evidence  of  contribution  to  the  pub- 
lic burdens.  The  consequence,  therefore,  of  adopt- 
ing any  separate  system  of  qualifications  for  the 
right  of  voting  under  the  Constitution  of  the  United 
States  would  have  been,  that,  in  some  of  the  States, 
there  would  be  persons  capable  of  voting  for  the 

ert  Morris,  and  Fitzsimmons,  to  all  persons  of  foreign  birth  from 
show  the  entire  impracticability  of  being  electors,  or  from  being  elect- 
a rule  that  would  have  excluded  ed  to  office. 


Ch.  IX.] 


POWER  OF  NATURALIZATION. 


199 


highest  State  officers,  and  yet  not  permitted  to  vote 
for  any  officer  of  the  United  States ; and  that  in  the 
other  States  persons  not  admitted  to  the  exercise  of 
the  right  under  the  State  constitution  might  have 
enjoyed  it  in  national  elections. 

This  embarrassment,  however,  did  not  extend  to 
the  qualifications  which  it  might  be  thought  neces- 
sary to  establish  for  the  right  of  being  elected  to 
office  under  the  general  government.  As  the  State 
and  the  national  governments  were  to  be  distinct 
systems,  and  the  officers  of  each  were  to  exercise 
very  different  functions,  it  was  both  practicable  and 
expedient  for  the  Constitution  of  the  United  States 
to  define  the  persons  who  should  be  eligible  to  the 
offices  which  it  created. 

At  the  same  time,  in  relation  to  both  of  these 
rights  — that  of  electing  and  that  of  being  elected  to 
national  offices  — it  was  highly  necessary  that  the 
national  authority,  either  by  direct  provision  of  the 
Constitution,  or  by  a legislative  power  to  be  exer- 
cised under  it,  should  determine  the  period  when 
the  rights  of  citizenship  could  be  acquired  by  per- 
sons of  foreign  birth.  From  the  first  establishment 
of  the  State  governments  down  to  the  present  period, 
those  governments  had  possessed  the  power  of  nat- 
uralization. Their  rules  for  the  admission  of  for- 
eigners to  the  privileges  of  citizenship  were  extreme- 
ly unlike ; and  if  the  power  of  prescribing  the  rule 
were  to  be  left  to  them,  and  the  Constitution  of  the 
United  States  were  to  adopt  the  qualifications  of 
voters  fixed  by  the  laws  of  the  States,  or  were  to  be 


200 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


silent  with  respect  to  the  qualifications  of  its  own 
officers,  the  rights  both  of  electing  and  of  being 
elected  to  national  office  would,  in  respect  to  citizen- 
ship, be  regulated  by  no  uniform  principle.  If, 
therefore,  the  right  of  voting  for  any  class  of  federal 
officers  were  to  be  in  each  State  the  same  as  that 
given  by  the  State  laws  for  the  election  of  any  class 
of  State  officers,  it  was  quite  essential  that  the  States 
should  surrender  to  the  general  government  the 
power  to  determine,  as  to  persons  of  foreign  birth, 
what  period  of  residence  in  the  country  should  be 
required  for  the  rights  of  citizenship.  It  was  equally 
necessary  that  the  national  government  should  pos- 
sess this  power,  if  it  was  intended  that  citizenship 
should  be  regarded  at  all  in  the  selection  of  those 
who  were  to  fill  the  national  offices. 

The  committee  of  detail,  after  a review  of  all 
these  considerations,  presented  a scheme  that  was 
well  adapted  to  meet  the  difficulties  of  the  case. 
They  proposed  that  the  same  persons  who,  by  the 
laws  of  the  several  States,  were  admitted  to  vote  for 
members  of  the  most  numerous  branch  of  their  own 
legislatures,  should  have  the  right  to  vote  for  the 
representatives  in  Congress.  The  adoption  of  this 
principle  avoided  the  necessity  of  disfranchising  any 
portion  of  the  people  of  a State  by  a system  of  qual- 
ifications unknown  to  their  laws.  As  the  States 
were  the  best  judges  of  the  circumstances  and  tem- 
per of  their  own  people,  it  was  certainly  best  to  con- 
ciliate them  to  the  support  of  the  new  Constitution 
by  this  concession.  It  was  possible,  indeed,  but  not 


Ch.  IX.] 


QUALIFICATIONS  OF  VOTERS. 


201 


very  probable,  that  they  might  admit  foreigners  to 
the  right  of  voting  without  the  previous  qualification 
of  citizenship.  It  was  possible,  too,  that  they  might 
establish  universal  suffrage  in  its  most  unrestricted 
sense.  But  against  all  these  evils  there  existed  one 
great  security ; namely,  that  the  mischiefs  of  an  ab- 
solutely free  suffrage  would  be  felt  most  severely  by 
themselves  in  their  domestic  concerns ; and  against 
the  special  danger  to  be  apprehended  from  the  in- 
discriminate admission  of  foreigners  to  the  right  of 
voting,  another  feature  of  the  proposed  plan  gave 
the  national  legislature  power  to  withhold  from 
persons  of  foreign  birth  the  privileges  of  general 
citizenship,  although  a State  might  confer  upon 
them  the  power  of  voting  without  previous  natural- 
ization. 

This  part  of  the  scheme  consisted  in  the  transfer 
of  the  power  of  naturalization  to  the  general  gov- 
ernment ; a power  that  was  necessarily  made  exclu- 
sive, by  being  made  a power  to  establish  a uniform 
rule  on  the  subject. 

These  provisions  were  not  only  necessary  in  the 
actual  situation  of  the  States,  but  they  were  also  in 
harmony  with  the  great  purpose  of  the  representa- 
tive system  that  had  been  agreed  upon  as  the  basis 
of  one  branch  of  the  legislative  power.  In  that 
branch  the  people  of  each  State  were  to  be  repre- 
sented; but  they  were  to  remain  the  people  of  a 
distinct  community,  whose  modes  of  exercising  the 
right  of  self-government  would  be  peculiar  to  them- 
selves ; and  that  would  obviously  be  the  most  suc- 

VOL.  II.  26 


202 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


cessful  representation  of  such  a people  in  a national 
assembly,  which  most  conformed  itself  to  their  habits 
and  customs  in  the  organization  of  their  own  legis- 
lative bodies.  Accordingly,  although  very  strenu- 
ous efforts  were  made  to  introduce  into  the  Con- 
stitution of  the  United  States  particular  theories 
with  regard  to  popular  suffrage,  — some  of  the  mem- 
bers being  in  favor  of  one  restriction  and  some  of 
another,  — the  rule  which  referred  the  right  in  each 
State  to  its  domestic  law  was  sustained  by  a large 
majority  of  the  Convention.  But  the  power  that 
was  given,  by  unanimous  consent,  over  the  subject 
of  naturalization,  shows  the  strong  purpose  that  was 
entertained  of  vesting  in  the  national  authority  an 
efficient  practical  control  over  the  States  in  respect 
to  the  political  rights  to  be  conceded  to  persons  not 
natives  of  the  country.1 

As  we  have  already  seen,  the  committee  of  detail 
had  been  instructed  to  report  qualifications  of  prop- 
erty and  citizenship  for  the  members  of  every  depart- 
ment of  the  government.  But  they  found  the  subject 
so  embarrassing,  that  they  contented  themselves  with 
providing  that  the  legislature  of  the  United  States 
should  have  authority  to  establish  such  uniform 
qualifications  for  the  members  of  each  house,  with 
regard  to  property,  as  they  might  deem  expedient.2 


1 I have  called  the  naturalization 
power  a practical  control  upon  the 

States  in  the  matter  of  suffrage.  It 
is  indirect,  but  it  is  effectual ; for  I 
believe  that  no  State  has  ever  gone 
so  far  as,  by  express  statutory  or 


constitutional  provision,  to  admit  to 
the  right  of  voting  persons  of  for- 
eign birth  who  are  not  naturalized 
citizens  of  the  United  States. 

9 Art.  VI.  Sect.  2 of  the  reported 
draft. 


Ch.  IX.] 


QUALIFICATIONS  FOR  OFFICE. 


203 


They  introduced,  however,  into  their  draft  of  a Con- 
stitution, an  express  provision  that  every  member  of 
the  House  of  Representatives  should  be  of  the  age 
of  twenty-five  years  at  least,  should  have  been  a cit- 
izen of  the  United  States  for  at  least  three  years 
before  his  election,  and  should  be,  at  the  time  of  his 
election,  a resident  in  the  State  in  which  he  might 
be  chosen.1 

A property  qualification  for  the  members  of  the 
House  of  Representatives  was  a thing  of  far  less 
consequence  than  the  fact  of  citizenship.  Indeed, 
there  might  well  be  a doubt,  whether  a requisition 
of  this  kind  would  not  be  in  some  degree  inconsist- 
ent with  the  character  that  had  already  been  im- 
pressed upon  the  government,  by  the  compromise 
which  had  settled  the  nature  of  the  representation 
in  the  popular  branch.  It  was  to  be  a representa- 
tion of  the  people  of  the  States ; and  as  soon  as  it 
was  determined  that  the  right  of  suffrage  in  each 
State  should  be  just  as  broad  as  the  legislative  au- 
thority of  the  State  might  see  fit  to  make  it,  the 
basis  of  the  representation  became  a democracy, 
without  any  restrictions  save  those  which  the  people 
of  each  State  might  impose  upon  it  for  themselves. 
If  then  the  Constitution  were  to  refrain  from  impos- 
ing on  the  electors  a property  qualification,  for  the 
very  purpose  of  including  all  to  whom  the  States 
might  concede  the  right  of  voting  within  their  re- 
spective limits,  thus  excluding  the  idea  of  a special 
representation  of  property,  it  was  certainly  not  neces- 

1 Art.  IV.  Sect.  2 of  the  reported  draft. 


204 


FOKMATION  OF  THE  CONSTITUTION.  [Book  IV. 


sary  to  require  the  possession  of  property  by  the 
representatives,  or  to  clothe  the  national  legislature 
with  power  to  establish  such  a qualification.  The 
clause  reported  by  the  committee  of  detail  for  this 
purpose  was  accordingly  left  out  of  the  Constitu- 
tion.1 

But  with  respect  to  citizenship,  as  a requisite 
for  the  office  of  a representative  or  a senator,  very 
different  considerations  applied.  With  whatever 
degree  of  safety  the  States  might  be  permitted  to 
determine  who  should  vote  for  a representative  in 
the  national  legislature,  it  was  necessary  that  the 
Constitution  itself  should  meet  and  decide  the  grave 
questions,  whether  persons  of  foreign  birth  should 
be  eligible  at  all,  and  if  so,  at  what  period  after  they 
had  acquired  the  general  rights  of  citizens.  It 
seems  highly  probable,  from  the  known  jealousies 
and  fears  that  were  entertained  of  foreign  influence, 
that  the  eligibility  to  office  would  have  been  strictly 
confined  to  natives,  but  for  a circumstance  to  which 
allusion  has  already  been  made.  The  presence  of 
large  numbers  of  persons  of  foreign  birth,  who  had 
adopted,  and  been  adopted  by,  some  one  of  the 
States,  who  stood  on  a footing  of  equality  with  the 
native  inhabitants,  and  some  of  whom  had  served 
the  country  of  their  adoption  with  great  distinction 
and  unsuspected  fidelity,  was  the  insuperable  obsta- 
cle to  such  a provision.  The  objection  arising  from 
the  impolicy  of  discouraging  future  immigration  had 

1 New  Hampshire,  Massachusetts,  and  Georgia  alone  voted  to  retain  it. 
Elliot,  V.  404. 


Ch.  IX.] 


QUALIFICATIONS  FOR  OFFICE. 


205 


its  weight;  but  it  had  not  the  decisive  influence 
which  was  conceded  to  the  position  of  those  for- 
eigners already  in  the  country  and  already  enjoying 
the  rights  of  citizenship  under  the  laws  and  consti- 
tutions of  the  several  States.  That  men  should  be 
perpetually  ineligible  to  otflce  under  a constitution 
which  they  had  assisted  in  making,  could  not  be 
said  to  be  demanded  by  the  people  of  America. 

The  subject,  therefore,  was  found  of  necessity  to 
resolve  itself  into  the  question,  what  period  of  pre- 
vious citizenship  should  be  required.  The  com- 
mittee of  detail  proposed  three  years.  Other  mem- 
bers desired  a much  longer  period.  Hamilton,  on 
the  other  hand,  supported  by  Madison,  proposed 
that  no  definite  time  should  be  established  by  the 
Constitution,  and  that  nothing  more  should  be 
required  than  citizenship  and  inhabitancy.  He 
thought  that  the  discretionary  power  of  determin- 
ing the  rule  of  naturalization  would  afford  the 
necessary  means  of  control  over  the  whole  subject. 
But  this  plan  did  not  meet  the  assent  of  a majority 
of  the  States,  and,  after  various  periods  had  been 
successively  rejected,  the  term  of  seven  years’  citi- 
zenship as  a qualification  of  members  of  the  House 
of  Representatives  was  finally  established. 

But  was  this  qualification  to  apply  to  those  for- 
eigners who  were  then  citizens  of  the  States,  and 
who,  as  such,  would  have  the  right  to  vote  on  the 
acceptance  of  the  Constitution1?  Were  they  to  be 
told  that,  although  they  could  ratify  the  Constitu- 
tion, they  could  not  be  eligible  to  office  under  it, 


206 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


until  they  had  enjoyed  the  privileges  of  citizenship 
for  seven  years  \ They  had  been  invited  hither  by 
the  liberal  provisions  of  the  State  institutions  ; they 
had  been  made  citizens  by  the  laws  of  the  State 
where  they  resided;  the  Articles  of  Confederation 
gave  them  the  privileges  of  citizens  in  every  other 
State ; and  thus  the  very  communities  by  which  this 
Convention  had  been  instituted  were  said  to  have 
pledged  their  public  faith  to  these  persons,  that  they 
should  stand  upon  an  equality  with  all  other  citi- 
zens. It  is  a proof  that  their  case  was  thought  to 
be  a strong  one,  and  it  is  a striking  evidence  of  the 
importance  attached  to  the  principles  involved,  that 
an  effort  was  made  to  exempt  them  from  the  oper- 
ation of  the  rule  requiring  a citizenship  of  seven 
years,  and  that  it  was  unsuccessful.1 

It  is  impossible  now  to  determine  how  numerous 
this  body  of  persons  were,  in  whose  favor  the  at- 
tempt was  made  to  establish  an  exception  to  the 
rule ; and  their  numbers  constitute  a fact  that  is 
now  historically  important  only  in  its  bearing  upon 
a principle  of  the  Constitution.  From  the  argu- 
ments of  those  who  sought  to  introduce  the  excep- 
tion, it  appears  that  fears  were  entertained  that  the 
retrospective  operation  of  the  rule  would  expose  the 
acceptance  of  the  Constitution  to  great  hazards ; for 
the  States,  it  was  said,  would  be  reduced  to  the 
dilemma  of  rejecting  it,  or  of  violating  the  faith 

1 The  Constitution  of  Pennsyl-  of  citizens.  There  were  similar 
vania  had  given  to  foreigners,  after  provisions  in  nearly  all  of  the 
two  years’  residence,  all  the  rights  States. 


Ch.  IX.J 


QUALIFICATIONS  FOR  OFFICE. 


207 


pledged  to  a part  of  their  citizens.  Accordingly, 
the  implied  obligation  of  the  States  to  secure  to 
their  citizens  of  foreign  birth  the  same  privileges 
with  natives  was  urged  with  great  force,  and  it  was 
inferred  from  the  notorious  inducements  that  had 
been  held  out  to  foreigners  to  emigrate  to  America, 
and  to  avail  themselves  of  the  easy  privileges  of  cit- 
izenship. Whether  the  United  States  were  in  any 
way  bound  to  redeem  these  alleged  pledges  of  the 
States,  was  a nice  question  of  casuistry,  that  was  a 
good  deal  debated  in  the  discussion.  But  in  truth 
there  was  no  obligation  of  public  faith  in  the  case, 
the  disregard  of  which  could  be  justly  made  a mat- 
ter of  complaint  by  anybody.  When  the  States  had 
made  these  persons  citizens,  and  through  the  Arti- 
cles of  Confederation  had  conferred  upon  them  the 
privileges  of  citizens  in  every  State  in  the  Union, 
they  did  not  thereby  declare  that  such  adopted  citi- 
zens should  be  immediately  eligible  to  any  or  all  of 
the  offices  under  any  new  government  which  the 
American  people  might  see  fit  to  establish  at  any 
future  time.  To  have  said  that  they  never  should 
be  eligible,  would  have  been  to  establish  a rule  that 
would  have  excluded  some  of  the  most  eminent 
statesmen  in  the  country.  But  the  period  in  their 
citizenship  when  they  should  be  made  eligible,  was 
just  as  much  an  open  question  of  public  policy,  as 
the  period  of  life  at  which  all  native  and  all.  adopted 
citizens  should  be  deemed  fit  to  exercise  the  func- 
tions of  legislators.  If  the  citizen  of  foreign  birth 
was  disfranchised  by  the  one  requirement,  the  native 


208 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


citizen  was  equally  disfranchised  by  the  other,  until 
the  disability  had  ceased.  The  question  was  decided, 
therefore,  and  rightly  so,  upon  large  considerations 
of  public  policy ; and  the  principal  reasons  that  ex- 
ercised a controlling  influence  upon  the  decision, 
and  caused  the  refusal  to  establish  any  exception  to 
the  rule,  afford  an  interesting  proof  of  the  national 
tone  and  spirit  that  Avere  intended  to  be  impressed 
upon  the  government  at  the  beginning  of  its  history. 

It  was  quite  possible,  as  all  were  ready  to  concede, 
that  the  time  might  arrive,  when  the  qualification 
of  so  extended  a period  of  citizenship  as  seven  years 
might  not  be  practically  very  important ; since  the 
people,  after  having  been  long  accustomed  to  the 
duty  of  selecting  their  representatives,  would  not 
often  be  induced  to  confer  their  suffrages  upon  a 
foreigner  recently  admitted  to  the  position  of  a citi- 
zen. The  mischiefs,  too,  that  might  be  apprehended 
from  such  appointments  would  be  far  less,  after  the 
policy  of  the  government  had  been  settled  and  the 
fundamental  legislation  necessary  to  put  the  Consti- 
tution into  activity  had  been  accomplished.  But 
the  first  Congress  that  might  be  assembled  under 
the  Constitution  would  have  a work  of  great  magni- 
tude and  importance  to  perform.  Indeed,  the  char- 
acter which  the  government  was  to  assume  would 
depend  upon  the  legislation  of  the  few  first  years 
of  its  existence.  Its  commercial  regulations  would 
then  be  mainly  determined.  The  relations  of  the 
country  with  foreign  nations,  its  position  towards 
Europe,  its  rights  and  duties  of  neutrality,  its  power 


Ch.  IX.] 


IMMIGRATION  ENCOURAGED. 


209 


to  maintain  a policy  of  its  cuvn,  would  all  then  be 
ascertained  and  settled.  Nothing,  therefore,  could 
be  more  important,  than  to  prevent  persons  having 
foreign  attachments  from  insinuating  themselves 
into  the  public  councils ; and  with  this  great  lead- 
ing object  in  view,  the  Convention  refused,  though 
by  a mere  majority  only  of  the  States,  to  exempt 
from  the  rule  those  foreigners  who  had  been  made 
citizens  under  the  naturalization  laws  of  the  States.1 

Thus  it  appears  that  the  Constitution  of  the  United 
States  discloses  certain  distinct  purposes  with  refer- 
ence to  the  participation  of  foreigners  in  the  politi- 
cal concerns  of  the  country.  In  the  first  place,  it 
was  clearly  intended  that  there  should  be  no  real 
discouragement  to  immigration.  The  position  and 
history  of  the  country  from  its  first  settlement,  its 
present  and  prospective  need  of  labor  and  capital, 
its  territorial  extent,  and  the  nature  of  its  free  in- 
stitutions, were  all  inconsistent  with  any  policy 
that  would  prevent  the  redundant  population  of  Eu- 
rope from  finding  in  it  an  asylum.  Accordingly, 
the  emigrant  from  foreign  lands  was  placed  under 
no  perpetual  disqualifications.  The  power  of  nat- 
uralization that  was  conferred  upon  the  general  gov- 


1 The  members  who  advocated 
the  exemption  were  G.  Morris, 
Mercer,  Gorham,  Madison,  and 
Wilson ; those  who  opposed  it 
were  Rutledge,  Sherman,  General 
Pinckney,  Mason,  and  Baldwin. 
The  States  voting  for  it  were  Con- 
necticut, New  Jersey,  Pennsylva- 
27 


nia,  Maryland,  Virginia,  5 ; the 
States  voting  against  it  were  New 
Hampshire,  Massachusetts,  Dela- 
ware, North  Carolina,  South  Car- 
olina, Georgia,  6.  The  question 
elicited  a good  deal  of  feeling,  and 
was  debated  with  some  warmth. 


VOL.  II. 


210 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


eminent,  and  the  accompanying  circumstances  at- 
tending its  transfer  by  the  States,  show  an  intention 
that  some  provision  should  be  made  for  the  admis- 
sion of  emigrants  to  the  privileges  of  citizenship, 
and  that  in  this  respect  the  inducements  to  a partic- 
ular residence  should  be  precisely  equal  throughout 
the  whole  of  the  States.  The  power  was  not  to 
remain  dormant,  under  ordinary  circumstances,  al- 
though there  might  undoubtedly  be  occasions  when 
its  exercise  should  be  suspended.  The  intention 
was,  that  the  legislature  of  the  United  States  should 
always  exercise  its  discretion  on  the  subject;  but 
the  existence  of  the  power,  and  the  reasons  for 
which  it  was  conferred,  made  it  the  duty  of  the 
legislature  to  exercise  that  discretion  according  to 
the  wants  of  the  country  and  the  requirements  of 
public  policy. 

In  the  second  place,  it  is  equally  clear  that  the 
founders  of  the  government  intended  that  there 
should  be  a real,  as  well  as  formal,  renunciation  of 
allegiance  to  the  former  sovereign  of  the  emigrant, 
— a real  adoption,  in  principle  and  feeling,  of  the 
new  country  to  which  he  had  transferred  himself,  — 
an  actual  amalgamation  of  his  interests  and  affec- 
tions with  the  interests  and  affections  of  the  native 
population,  — before  he  should  have  the  power  of 
acting  on  public  affairs.  This  is  manifest,  from  the 
discretionary  authority  given  to  Congress  to  vary 
the  rule  of  naturalization  from  time  to  time  as  cir- 
cumstances might  require,  — an  authority  that  places 
the  States  under  the  necessity  of  restricting  their 


Ch.  IX.] 


SPIRIT  OF  THE  CONSTITUTION. 


211 


right  of  suffrage  to  citizens,  if  they  would  avoid  the 
evils  to  themselves  of  an  indiscriminate  exercise  of 
that  right  by  all  who  might  choose  to  claim  it.  The 
period  of  citizenship,  too,  that  was  required  as  a 
qualification  for  a seat  in  the  popular  branch  of  the 
government,  and  which  was  extended  to  nine  years 
for  the  office  of  senator,  was  placed  out  of  the  dis- 
cretionary power  of  change  by  the  legislature,  in 
order  that  an  additional  term,  beyond  that  required 
for  the  general  rights  of  citizenship,  might  for  ever 
operate  to  exclude  the  dangers  of  foreign  predilec- 
tions and  an  insufficient  knowledge  of  the  duties  of 
the  station. 

No  one  who  candidly  studies  the  institutions  of 
America,  and  considers  what  it  was  necessary  for 
the  founders  of  our  government  to  foresee  and  pro- 
vide for,  can  hesitate  to  recognize  the  wisdom  and 
the  necessity  of  these  provisions.  A country  of  vast 
extent  opened  to  a boundless  immigration,  which  na- 
ture invited  and  which  man  could  scarcely  repel,  — 
a country,  too,  which  must  be  governed  by  popular 
suffrage,  — could  not  permit  its  legislative  halls  to 
be  invaded  by  foreign  influence.  The  independence 
of  the  country  would  have  been  a vain  and  useless 
achievement,  if  it  had  not  been  followed  by  the  prac- 
tical establishment  of  the  right  of  self-government 
by  the  native  population ; and  that  right  could  be 
secured  for  their  posterity  only  by  requiring  that  for- 
eigners, who  claimed  to  be  regarded  as  a part  of  the 
people  of  the  country,  should  be  first  amalgamated 
in  spirit  and  interest  with  the  mass  of  the  nation. 


212  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

No  other  changes  were  made  in  the  proposed 
qualifications  for  the  representatives,  excepting  to 
require  that  the  person  elected  should  be  an  inhab- 
itant of  the  State  for  which  he  might  be  chosen,  at 
the  time  of  election,  instead  of  being  a resident. 
This  change  of  phraseology  was  adopted  to  avoid 
ambiguity ; the  object  of  the  provision  being  simply 
to  make  the  representation  of  the  State  a real  one. 

The  Convention,  as  we  have  seen,  had  settled  the 
rule  for  computing  the  number  of  inhabitants  of  a 
State,  for  the  purposes  of  representation,  and  had 
made  it  the  same  with  that  for  apportioning  direct 
taxes  among  the  States.1  The  committee.. of  detail 
provided  that  there  should  be  one  representative  for 
every  forty  thousand  inhabitants,  when  Congress 
should  find  it  necessary  to  make  a new  apportion- 
ment of  representatives ; a ratio  that  had  not  been 
previously  sanctioned  by  a direct  vote  of  the  Con- 
vention, but  which  had  been  recommended  by  the 
committee  of  compromise,  at  the  time  when  the 
nature  of  the  representation  in  both  houses  was  ad- 
justed.2 This  ratio  was  now  adopted  in  the  article 
relating  to  the  House  of  Representatives ; but  not 
before  an  effort  was  made  to  exclude  the  slaves  from 
the  enumeration.3  The  renewed  discussion  of  this 
exciting  topic  probably  withdrew  the  attention  of 
members  from  the  consideration  of  the  numbers  of 
the  representatives,  and  nothing  more  was  done,  at 
the  time  we  are  now  examining,  than  to  make  a 


1 Ante,  Chap.  VII. 

2 See  ante,  Chap.  VIII. 


3 See  post,  as  to  the  compromise 
on  this  subject. 


Ch.  IX.] 


RATIO  OF  REPRESENTATION. 


213 


provision  that  the  number  should  not  exceed  one 
for  every  forty  thousand  inhabitants.  But  at  a sub- 
sequent stage  of  the  proceeedings,1  before  the  Con- 
stitution was  sent  to  the  committee  of  revision,  Wil- 
son, Madison,  and  Hamilton  endeavored  to  procure 
a reconsideration  of  this  clause,  for  the  purpose  of 
establishing  a more  numerous  representation  of  the 
people.  Hamilton,  who  had  always  and  earnestly 
advocated  the  introduction  of  a strong  democratic 
element  into  the  Constitution,  although  he  desired 
an  equally  strong  check  to  that  element  in  the  con- 
struction of  the  Senate,  is  represented  to  have  ex- 
pressed himself  with  great  emphasis  and  anxiety 
respecting  the  representation  in  the  popular  branch. 
He  avowed  himself,  says  Mr.  Madison,  a friend  to 
vigorous  government,  but  at  the  same  time  he  held 
it  to  be  essential  that  the  popular  branch  of  it  should 
rest  on  a broad  foundation.  He  was  seriously  of 
opinion,  that  the  House  of  Representatives  was  on 
so  narrow  a scale  as  to  be  really  dangerous,  and  to 
warrant  a jealousy  in  the  people  for  their  liberties.2 

But  the  motion  to  reconsider  was  lost,3  and  it  was 
not  until  the  Constitution  had  been  engrossed,  and 
was  about  to  be  signed,  that  an  alteration  was  agreed 
to,  at  the  suggestion  of  Washington.  This  was  the 
only  occasion  on  which  he  appears  to  have  expressed 
an  opinion  upon  any  question  depending  in  the  Con- 
vention. With  the  habitual  delicacy  and  reserve  of 
his  character,  he  had  confined  himself  strictly  to  the 

3 By  a majority  of  one  State. 
Ibid. 


1 September  8. 

2 Elliot,  Y.  530. 


214 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


duties  of  a presiding  officer,  throughout  the  proceed- 
ings. But  now,  as  the  Constitution  was  likely  to 
go  forth  with  a feature  that  would  expose  it  to 
a serious  objection,  he  felt  it  to  be  his  duty  to  in- 
terpose. But  it  was  done  with  great  gentleness. 
As  he  was  about  to  put  the  question,  he  said  that 
he  could  not  forbear  expressing  his  wish  that  the 
proposed  alteration  might  take  place.  The  small- 
ness of  the  proportion  of  representatives  had  been 
considered  by  many  members,  and  was  regarded  by 
him,  as  an  insufficient  security  for  the  rights  and 
interests  of  the  people.  Late  as  the  moment  was, 
it  would  give  him  much  satisfaction  to  see  an  amend- 
ment of  this  part  of  the  plan  adopted.  The  intima- 
tion was  enough ; no  further  opposition  was  offered, 
and  the  ratio  was  changed  to  one  representative  for 
thirty  thousand  inhabitants.1 

It  is  now  necessary  to  trace  the  origin  of  a pecu- 
liar power  of  the  House  of  Representatives,  that  is 
intimately  connected  with  the  practical  compromises 
on  which  the  government  was  founded,  although 
the  circumstances  and  reasons  of  its  introduction 
into  the  Constitution  are  not  generally  understood. 
I refer  to  the  exclusive  power  of  originating  what 
are  sometimes  called  “money  bills.”  In  making 
this  provision,  the  framers  of  our  government  are 
commonly  supposed  to  have  been  guided  wholly  by 
the  example  of  the  British  constitution,  upon  an 

1 That  is  to  say,  Congress  were  habitants,  but  not  to  exceed  that 
authorized  to  apportion  one  rep-  number.  Constitution,  Art.  I.  § 2. 
resentative  to  thirty  thousand  in- 


Ch.  IX.] 


MONEY  BILLS. 


215 


assumed  analogy  between  the  relations  of  the  re- 
spective houses  in  the  two  countries  to  the  people 
and  to- each  other.  This  view  of  the  subject  is 
not  wholly  correct. 

At  an  early  period  in  the  deliberations,  when  the 
outline  of  the  Constitution  was  prepared  in  a com- 
mittee of  the  whole,  a proposition  was  brought  for- 
ward to  restrain  the  Senate  from  originating  money 
bills,  upon  the  ground  that  the  House  would  be  the 
body  in  which  the  people  would  be  the  most  directly 
represented,  and  in  order  to  give  effect  to  the  maxim 
which  declares  that  the  people  should  hold  the 
purse-strings.  The  suggestion  was  immediately  en- 
countered by  a general  denial  of  all  analogy  between 
the  English  House  of  Lords  and  the  body  proposed 
to  be  established  as  the  American  Senate.  In  truth, 
as  the  construction  of  the  Senate  then  stood  in  the 
resolutions  agreed  to  in  the  committee  of  the  whole, 
the  supposed  reason  for  the  restriction  in  England 
would  have  been  inapplicable ; for  it  had  been  voted 
that  the  representation  in  the  Senate  should  be  upon 
the  same  proportionate  rule  as  that  of  the  House, 
although  the  members  of  the  former  were  to  be 
chosen  by  the  legislatures,  and  the  members  of  the 
latter  by  the  people,  of  the  States.  It  was  rightly 
said,  therefore,  at  this  time,  that  the  Senate  would 
represent  the  people  as  well  as  the  House ; and  that 
if  the  reason  in  England  for  confining  the  power  to 
originate  money  bills  to  the  House  of  Commons  was 
that  they  were  the  immediate  representatives  of  the 
people,  the  reason  had  no  application  to  the  two 


216 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


branches  proposed  for  the  Congress  of  the  United 
States.1  It  was  however  admitted,  that,  if  the  rep- 
resentation in  the  Senate  should  not  finally  be  made 
a proportionate  representation  of  the  people  of  the 
several  States,  there  might  be  a cause  for  introduc- 
ing this  restriction.2  This  intimation  referred  to  a 
reason  that  subsequently  became  very  prominent. 
But  when  first  proposed,  the  restriction  was  rejected 
in  the  committee  by  a vote  of  seven  States  against 
three;  there  being  nothing  involved  in  the  ques- 
tion at  that  time  excepting  the  theoretical  merits  of 
such  a distinction  between  the  powers  of  the  two 
houses.3 

But  other  considerations  afterwards  arose.  When 
the  final  struggle  came  on  between  the  larger  and 
the  smaller  States,  upon  the  character  of  the  repre- 


1  Let  the  reader  consult  Mr. 

Hallam’s  acute  and  learned  discus- 

sion of  this  exclusive  privilege  of 
the  House  of  Commons,  (Const. 
Hist.,  III.  37-46,)  and  he  will  prob- 
ably be  satisfied,  that,  whatever  the- 
oretical reasons  different  writers 
may  have  assigned  for  it,  its  origin 
is  so  obscure,  and  its  precise  limits 
and  purposes,  deduced  from  the 
precedents,  are  so  uncertain,  that 
it  can  now  be  said  to  rest  on  no 
positive  principles.  Its  basis  is 
custom ; which,  having  no  definite 
beginning,  is  now  necessarily  im- 
memorial. It  would  not  be  quite 
safe,  therefore,  to  reason  upon  the 
well-defined  provision  of  our  Con- 
stitution, as  if  there  were  a close 
analogy  between  the  situation  of 


the  two  houses  of  Congress  and 
the  two  branches  of  the  British 
legislature.  The  English  example 
certainly  had  an  influence,  in  sug- 
gesting the  plan  of  such  a restric- 
tion; but  care  must  be  taken  not 
to  overlook  the  peculiar  arrange- 
ments which  made  it  so  highly  ex- 
pedient, that  it  may  be  said  to  have 
been  a necessity,  even  if  there  had 
been  no  British  example. 

2 C.  Pinckney.  Elliot,  V.  189. 
June  13. 

3 On  the  question  for  restraining 
the  Senate  from  originating  money 
bills,  New  York,  Delaware,  Vir- 
ginia, ay,  3 ; Massachusetts,  Con- 
necticut, New  Jersey,  Maryland, 
North  Carolina,  South  Carolina, 
Georgia,  no,  7.  Ibid. 


Ch.  IX.] 


REVENUE  BILLS. 


217 


sentation  in  the  two  branches,  the  plan  of  restricting 
the  origin  of  money  bills  to  the  House  of  Represent- 
atives presented  itself  in  a new  aspect.  The  larger 
States  were  required  to  concede  an  equality  of  rep- 
resentation in  the  Senate ; and  it  was  supposed, 
therefore,  that  they  would  desire  to  increase  the 
relative  power  of  the  branch  in  which  they  would 
have  the  greatest  numerical  strength.  The  five 
States  of  Massachusetts,  Pennsylvania,  Virginia, 
North  Carolina,  and  South  Carolina  had  steadily 
resisted  the  equality  of  votes  in  the  Senate.  When 
it  wras  at  length  found  that  the  States  were  equally 
divided  on  this  question,  and  it  became  necessary 
to  appoint  the  first  committee  of  compromise,  the 
smaller  States  tendered  to  the  five  larger  ones  the 
exclusive  money  power  of  the  House,  as  a compen- 
sation for  the  sacrifice  required  of  them.  It  was  so 
reported  by  the  committee  of  compromise ; and  al- 
though it  met  with  resistance  in  the  Convention, 
and  was  denied  to  be  a concession  of  any  importance 
to  the  larger  States,  it  was  retained  in  the  report,1 
and  thus  formed  a special  feature  of  the  resolutions 
sent  to  the  committee  of  detail.  But  those  resolu- 
tions had  also  established  the  equality  of  represen- 
tation in  the  Senate,  and  the  whole  compromise, 
with  its  several  features,  had  therefore  been  once 
fully  ascertained  and  settled.  A strong  opposition, 
nevertheless,  continued  to  be  made  to  the  exclusive 
money  power  of  the  House,  by  those  who  disap- 
proved of  it  on  its  merits ; and  when  the  article  by 

1 Elliot,  V.  285.  Ante,  Chap.  VIII. 

28 


VOL.  II. 


218 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


which  it  was  given  in  the  reported  draft  prepared 
by  the  committee  of  detail  was  reached,  it  was 
stricken  out  by  a very  large  vote  of  the  States.1  In 
this  vote  there  was  a concurrence  of  very  opposite 
purposes  on  the  part  of  the  different  States  compos- 
ing the  majority.  New  Jersey,  Delaware,  and  Mary- 
land, for  example,  feeling  secure  of  their  equality 
in  the  Senate,  were  not  unwilling  to  allow  theoret- 
ical objections  to  prevail,  against  the  restriction  of 
money  bills  to  the  branch  in  which  they  would  ne- 
cessarily be  outnumbered.  On  the  other  hand,  some 
of  the  delegates  of  Pennsylvania,  Virginia,  and  South 
Carolina,  still  unwilling  to  acquiesce  in  the  equality 
of  representation  in  the  Senate,  may  have  hoped  to 
unhinge  the  whole  compromise.  There  was  still  a 
third  party  among  the  members,  who  insisted  on 
maintaining  the  compromise  in  all  its  integrity,  and 
who  considered  that  the  nature  of  .the  represention 
in  the  Senate,  conceded  to  the  wishes  of  the  smaller 
States,  rendered  it  eminently  fit  that  the  House 
alone  should  have  the  exclusive  power  to  originate 
money  bills.2 

This  party  finally  prevailed.  They  rested  their 


1 August  8.  For  striking  out, 
New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  South 
Carolina,  Georgia,  ay,  7 ; New 
Hampshire,  Massachusetts,  Con- 
necticut, North  Carolina,  no,  4. 

2 Dr.  Franklin,  Mason,  William- 
son, and  Randolph  (Elliot,  V. 
395-397.)  It  would  be  endless 
to  cite  the  observations  of  different 


members,  to  show  the  purposes 
which  they  entertained.  The 
reader,  who  desires  to  test  the  ac- 
curacy of  my  inferences  in  any  of 
these  descriptions,  must  study  the 
debates,  and  compare,  as  I have 
done,  the  different  phases  which 
the  subject  assumed  from  time  to 
time. 


Ch.  IX.] 


REVENUE  BILLS. 


219 


first  efforts  chiefly  upon  the  fact  that  the  Senate 
was  to  represent  the  States  in  their  political  charac- 
ter. Although  it  might  be  proper  to  give  such  a 
body  a negative  upon  the  appropriations  to  be  made 
by  the  representatives  of  the  people,  it  was  not 
proper  that  it  should  tax  the  people.  They  first 
procured  a reconsideration  of  the  vote  which  had 
stricken  out  this  part  of  the  compromise.  They 
then  proposed,  in  order  to  avoid  an  alleged  ambi- 
guity, that  bills  for  raising  money  for  the  purpose 
of  revenue , or  appropriating  money,  should  originate 
in  the  House,  and  should  not  be  so  amended  or  al- 
tered in  the  Senate  as  to  increase  or  diminish  the 
sum  to  be  raised,  or  change  the  mode  of  levying  it, 
or  the  object  of  its  appropriation.1  An  earnest  and 
somewhat  excited  debate  followed  this  proposition, 
but  it  was  lost.2 

In  a day  or  two,  however,  another  effort  was 
made,  conceding  to  the  Senate  the  power  to  amend, 
as  in  other  cases,  but  confining  the  right  to  the 
House  of  originating  bills  for  raising  money  for  the 
purpose  of  revenue,  or  for  appropriating  the  same, 
and  for  fixing  the  salaries  of  officers  of  the  govern- 
ment.3 

This  new  proposition  was  postponed  for  a long 
time,  until  it  became  necessary  to  refer  several  top- 
ics not  finally  acted  upon  to  a committee  of  one 

1 Moved  by  Randolph,  August  forward  as  an  amendment  to  the 

13  Elliot,  V.  414.  article  (Art.  VI.  § 12)  which  was 

2 Ibid.  420  to  define  the  powers  of  the  two 

3 Moved  by  Mr.  Strong,  August  houses. 


220  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

member  from  each  State.1  Among  these  subjects 
there  was  one  that  gave  rise  to  protracted  conflicts 
of  opinion,  which  will  be  examined  hereafter.  It 
related  to  the  mode  of  choosing  the  executive.  In 
the  plan  reported  by  the  committee  of  detail,  pursu- 
ant to  the  instructions  of  the  Convention,  the  exec- 
utive was  to  be  chosen  by  the  national  legislature, 
for  a period  of  seven  years,  and  was  to  be  ineligible 
a second  time.  Great  efforts  were  subsequently 
made  to  change  both  the  mode  of  appointment  and 
the  tenure  of  the  office,  and  the  whole  subject  was 
finally  referred  with  others  to  a committee.  In  this 
committee,  a new  compromise,  which  has  attracted 
but  little  attention,  embraced  the  long-contested 
point  concerning  the  origin  of  money  bills.  In 
this  compromise,  as  in  so  many  of  the  others  on 
which  the  Constitution  was  founded,  two  influences 
are  to  be  traced.  There  were  in  the  first  place 
what  may  be  called  the  merits  of  a proposition, 
without  regard  to  its  bearing  on  the  interests  of 
particular  States ; and  in  the  second  place  there 
were  the  local  or  State  interests,  which  entered  into 
the  treatment  of  every  question  by  which  they  could 
be  affected.  In  studying  the  compromises  of  the 
Constitution,  it  is  constantly  necessary  to  observe 
how  the  arrangement  finally  made  was  arrived  at 
by  the  concurrence  of  votes  given  from  these  various 
motives. 

It  was  now  proposed  in  the  new  committee,  that 
the  executive  should  be  chosen  by  electors,  appointed 


1 August  31.  Elliot,  V.  503. 


Ch.  IX.] 


REVENUE  BILLS. 


221 


by  each  State  in  such  manner  as  its  legislature  might 
direct,  each  State  to  have  a number  of  electors  equal 
to  the  whole  number  of  its  senators  and  representa- 
tives in  Congress ; that  the  person  having  the  great- 
est number  of  votes,  provided  it  were  a majority  of 
the  electors,  should  be  declared  elected ; that  if  there 
should  be  more  than  one  having  such  a majority, 
the  Senate  should  immediately  choose  one  of  them 
by  ballot;  and  that  if  no  person  had  a majority,  the 
Senate  should  immediately  choose  by  ballot  from 
the  five  highest  candidates  on  the  list  returned  by 
the  electors.  This  plan  of  vesting  the  election  in 
the  Senate,  in  case  there  should  be  no  choice  by  the 
electors,  was  eagerly  embraced  by  the  smaller  States, 
because  it  was  calculated  to  restore  to  them  the 
equilibrium  which  they  would  lose  in  the  primary 
election,  by  the  preponderance  of  votes  held  by  the 
larger  States.  At  the  same  time,  it  gave  to  the 
larger  States  great  influence  in  bringing  forward  the 
candidates,  from  whom  the  ultimate  choice  must  be 
made,  when  no  choice  had  been  effected  by  the 
electors ; and  it  put  it  in  their  power,  by  a combi- 
nation of  their  interests  against  those  of  the  smaller 
States,  to  choose  their  candidate  at  the  first  election. 
To  this  great  influence,  many  members  from  the 
larger  States  desired,  naturally,  to  add  the  privilege 
of  confining  the  origin  of  revenue  bills  to  the  House 
of  Representatives.  They  found  in  the  committee 
some  members  from  the  smaller  States  willing  to 
concede  this  privilege,  as  the  price  of  an  ultimate 
election  of  the  executive  by  the  Senate,  and  of  other 


222 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


arrangements  which  tended  to  elevate  the  tone  of 
the  government,  by  increasing  the  power  and  influ- 
ence of  the  Senate.  They  found  others  also  who 
approved  of  it  upon  principle.  The  compromise 
was  accordingly  effected  in  the  committee,  and  in 
this  attitude  the  question  concerning  revenue  bills 
again  came  before  the  Convention.1 

But  there,  a scheme  that  seemed  likely  to  elevate 
the  Senate  into  a powerful  oligarchy,  and  that  would 
certainly  put  it  in  the  power  of  seven  States,  not 
containing  a third  of  the  people,  to  elect  the  exec- 
utive, when  there  failed  to  be  a choice  by  the  elec- 
tors, met  with  strenuous  resistance.  For  these  and 
other  reasons,  not  necessary  to  be  recounted  here, 
the  ultimate  choice  of  the  executive  was  transferred 
from  the  Senate  to  the  House  of  Representatives.2 
This  change,  if  coupled  with  the  concession  of  reve- 
nue bills  to  the  House,  without  the  right  to  amend 
in  the  Senate,  would  have  thrown  a large  balance  of 
power  into  the  former  assembly;  and  in  order  to 
prevent  this  inequality,  a provision  was  made,  in  the 
words  used  in  the  Constitution  of  Massachusetts,  that 
the  Senate  might  propose  or  concur  with  amend- 
ments, as  on  other  bills.  With  this  addition,  the 
restriction  of  the  origin  of  bills  for  raising  revenue 
to  the  House  of  Representatives  finally  passed,  with 
but  two  dissentient  votes.3 

1 Elliot,  Y.  506,  510,  511,  514.  2 Ibid.  519. 

The  privilege,  as  it  came  from  this  3 The  history  of  this  provision 

committee,  was  confined  to  “ bills  shows  clearly  that  a bill  for  appro- 
for  raising  revenue”;  and  these  priating  money  may  originate  in 
were  made  subject  to  “ alterations  the  Senate, 
and  amendments  by  the  Senate.” 


Ch.  IX.]  QUALIFICATIONS  OF  SENATORS.  223 

The  qualifications  of  the  Senators  had  been  made 
superior  in  some  respects  to  those  of  the  members 
of  the  House  of  Representatives,  on  account  of  the 
peculiar  duties  which  it  was  intended  they  should 
discharge,  and  the  length  of  their  term  of  office. 
They  were  to  be  of  the  age  of  thirty  years ; to  be 
inhabitants  of  the  States  for  which  they  might  be 
chosen ; and  in  the  report  of  the  committee  of  detail 
the  period  of  four  years’  citizenship  was  made  one  of 
the  requirements.  But  so  great  was  the  jealousy  of 
foreign  influence,  and  so  important  was  the  position 
of  a senator  likely  to  become,  that,  when  this  partic- 
ular qualification  came  to  be  considered,  it  was  found 
to  be  altogether  impossible  to  make  so  short  a period 
of  citizenship  acceptable  to  a majority.  According 
to  the  plan  then  contemplated,  the  Senate  was  to  be 
a body  of  great  power.  Its  legislative  duties  were 
to  form  but  a part  of  its  functions.  It  was  to  have 
the  making  of  treaties,  and  the  appointment  of  am- 
bassadors and  judges  of  the  Supreme  Court,  without 
the  concurrent  action  of  any  other  department  of 
the  government.  In  addition  to  these  special  pow- 
ers, it  was  to  have  a concurrent  vote  with  the  House 
of  Representatives  in  the  election  of  the  executive. 
It  was  also  to  exercise  the  judicial  function  of  hear- 
ing and  determining  questions  of  boundary  between 
the  States. 

This  formidable  array  of  powers,  which  were  sub- 
sequently much  modified  or  entirely  taken  away, 
but  which  no  one  could  then  be  sure  would  not  be 
retained  as  they  had  been  proposed,  rendered  it 


224 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


necessary  to  guard  the  Senate  with  peculiar  care. 
A very  animated  discussion,  in  which  the  same  rea- 
sons were  urged  on  both  sides  which  had  entered 
into  the  debate  on  the  qualifications  of  the  representa- 
tives, enforced  by  the  peculiar  dangers  to  which  the 
Senate  might  be  exposed,  at  length  resulted  in  a vote 
establishing  the  period  of  nine  years’  citizenship  as 
a qualification  for  the  office  of  a senator.1 

The  origin  of  the  number  of  senators  and  of  the 
method  of  voting  forms  an  interesting  and  important 
topic,  to  which  our  inquiries  should  now  be  directed. 
We  have  already  seen  that,  in  the  formation'  of  the 
Virginia  plan  of  government,  as  it  was  digested  in 
the  committee  of  the  whole,  the  purpose  was  enter- 
tained, and  was  once  sanctioned  by  a bare  majority 
of  the  States,  of  giving  to  both  branches  of  the  legis- 
lature a proportional  representation  of  the  respective 
populations  of  the  States ; and  that  the  sole  differ- 
ence between  the  two  chambers  then  contemplated 
was  to  be  in  the  mode  of  election.  But  in  the  ac- 
tual situation  of  the  different  members  of  the  confed- 
eracy, it  was  a necessary  consequence  of  such  a 
representation,  that  the  Senate  would  be  made  by 
it  inconveniently  large,  whether  the  members  were 
to  be  elected  by  the  legislatures,  the  executives,  or 
the  people  of  the  States.  It  would,  in  fact,  have 
made  the  first  Senate  to  consist  of  eighty  or  a hun- 
dred persons,  in  order  to  have  entitled  the  State  of 

1 August  9.  Elliot,  V.  398-401.  the  negative,  and  the  vote  of  North 
Massachusetts,  Connecticut,  Penn-  Carolina  was  divided, 
syl vania,  and  Maryland  voted  in 


Ch.  IX.J 


NUMBER  OF  SENATORS. 


225 


Delaware  to  a single  member.  This  inconvenience 
was  pointed  out  at  an  early  period,  by  Rufus  King; 1 
but  it  did  not  prevent  the  adoption  of  this  mode  of 
representation.  On  the  one  side  of  that  long  con- 
tested question  were  those  who  desired  to  found 
the  whole  system  of  representation,  as  between  the 
States,  upon  their  relative  numbers  of  inhabitants. 
On  the  other  side  wTere  those  who  insisted  upon  an 
absolute  equality  between  the  States.  But  among 
the  former  there  was  a great  difference  of  opinion 
as  to  the  best  mode  of  choosing  the  senators, — 
whether  they  should  be  elected  by  the  people  in  dis- 
tricts, by  the  legislatures  or  the  executives  of  the 
States,  or  by  the  other  branch  of  the  national  legis- 
lature. So  strongly,  however,  were  some  of  the 
members  even  from  the  most  populous  States  im- 
pressed with  the  necessity  of  preserving  the  State 
governments  in  some  connection  with  the  national 
system,  that,  while  they  insisted  on  a proportional 
representation  in  the  Senate,  they  were  ready  to  con- 
cede to  the  State  legislatures  the  choice  of  its  mem- 
bers, leaving  the  difficulty  arising  from  the  magni- 
tude of  the  body  to  be  encountered  as  it  might  be.2 
The  delegates  of  the  smaller  States  accepted  this 
concession,  in  the  belief  that  the  impracticability  of 
constructing  a convenient  Senate  in  this  mode  would 
compel  an  abandonment  of  the  principle  of  unequal 
representation,  and  would  require  the  substitution 
of  the  equality  for  which  they  contended. 

In  this  expectation  they  were  not  disappointed; 

1 May  31.  Elliot,  Y.  133.  2 Dickinson,  Gerry,  Mason. 

YOL.  II.  29 


226 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


for  when  the  system  framed  in  the  committee  came 
under  revision  in  the  Convention,  and  the  severe 
and  protracted  contest  ended  at  last  in  the  compro- 
mise described  in  a previous  chapter,  the  States  were 
not  only  permitted  to  choose  the  members  of  the 
Senate,  but  they  were  admitted  to  an  equality  of 
representation  in  that  branch,  and  the  subject  was 
freed  from  the  embarrassment  arising  from  the  num- 
bers that  must  have  been  introduced  into  it  by  the 
opposite  plan.  From  this  point,  the  sole  questions 
that  required  to  be  determined  related  to  the  num- 
ber of  members  to  be  assigned  to  each  State,  and 
the  method  of  voting.  The  first  was  a>  question  of 
expediency  only;  the  last  was  a question  both  of 
expediency  and  of  principle. 

The  constant  aim  of  the  States,  which  had  from 
the  first  opposed  a radical  change  in  the  structure 
of  the  government,  was  to  frame  the  legislature  as 
nearly  as  possible  upon  the  model  of  the  Congress 
of  the  Confederation.  In  that  assembly,  each  State 
was  allowed  not  more  than  seven,  and  not  less  than 
two  members ; but  in  practice,  the  delegations  of  the 
States  perpetually  varied  between  these  two  num- 
bers, or  fell  below  the  lowest,  and  in  the  latter  case 
the  State  was  not  considered  as  represented.  The 
method  of  voting,  however,  rendered  it  unimportant 
how  many  members  were  present  from  a State,  pro- 
vided they  were  enough  to  cast  the  vote  of  the  State 
at  all ; for  all  questions  were  decided  by  the  votes  of 
a majority  of  the  States,  and  not  of  a majority  of  the 
members  voting.  I have  already  had  occasion  more 


Ch.  IX.]  METHOD  OF  VOTING  IN  THE  SENATE.  227 


than  once  to  notice  the  fact,  — and  it  is  one  of  no  in- 
considerable importance,  — that  the  first  Continental 
Congress,  assembled  in  1774,  adopted  the  plan  of  giv- 
ing to  each  Colony  one  vote,  because  it  was  impossible 
to  ascertain  the  relative  importance  of  the  different 
Colonies.  The  record  that  was  then  made  of  this 
reason  for  a method  of  voting  that  would  have  been 
otherwise  essentially  unjust,  shows  quite  clearly  that 
a purpose  was  then  entertained  of  adopting  some 
other  method  at  a future  time.  But  when  the  Ar- 
ticles of  Confederation  were  framed,  in  1781,  it  ap- 
pears as  clearly  from  the  discussions  in  Congress, 
not  only  that  the  same  difficulty  of  obtaining  the 
information  necessary  for  a different  system  contin- 
ued, but  that  some  of  the  States  were  absolutely 
unwilling  to  enter  the  Confederation  upon  any  other 
terms  than  a full  federal  equality.  In  this  way  the 
practice  of  voting  by  States  in  Congress  was  perpet- 
uated down  to  the  year  1787.  It  had  come  to  be 
regarded  by  some  of  the  smaller  States,  notwithstand- 
ing the  injustice  and  inconvenience  which  it  con- 
stantly produced,  as  a kind  of  birthright ; and  when 
the  Senate  of  the  United  States  came  to  be  framed, 
and  an  equality  of  representation  in  it  was  conceded, 
some  of  the  members  of  those  States  still  considered 
it  necessary  to  preserve  this  method  of  voting,  in 
order  to  complete  the  idea  of  State  representation, 
and  to  enable  the  States  to  protect  their  individual 
rights.1  But  it  is  obvious  that,  for  this  purpose,  the 

1 Sherman,  Luther  Martin,  Ells-  moved  by  Ellsworth,  July  2,  to 
worth.  On  the  naked  proposition,  allow  each  State  one  vote  in  the 


228 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


question  had  lost  its  real  importance,  when  an  equal 
number  of  Senators  was  assigned  to  each  State ; 
since,  upon  every  measure  that  can  touch  the  sepa- 
rate rights  and  interests  of  a State,  the  unanimity 
which  is  certain  to  prevail  among  its  representatives 
makes  the  vote  of  the  State  as  efficient  as  it  could 
be  if  it  were  required  to  be  cast  as  a unit,  while  the 
chances  for  its  protection  are  increased  by  the  oppor- 
tunity of  gaining  single  votes  from  the  delegations 
of  other  States. 

These  and  similar  considerations  ultimately  led  a 
large  majority  of  the  States  to  prefer  a union  of  the 
plan  of  an  equal  number  of  senators  from  each  State 
with  that  which  would  allow  them  to  vote  per  cap- 
ita} The  number  of  two  was  adopted  as  the  most 
convenient,  under  all  the  circumstances,  because 
most  likely  to  unite  the  despatch  of  business  with 
the  constant  presence  of  an  equal  number  from 
every  State. 

With  this  peculiar  character,  the  outline  of  the 
institution  went  to  the  committee  of  detail.  On  the 
consideration  of  their  report,  these  provisions,  as  we 
have  seen,  became  complicated  with  the  restriction 
of  “ money  bills  ” to  the  House  of  Representatives, 
and  the  choice  of  the  executive.  The  mode  in 
which  those  controversies  were  finally  settled  being 
elsewhere  stated,  it  only  remains  here  to  record  the 

Senate,  Connecticut,  New  York,  South  Carolina,  no,  5 ; Georgia 
New  Jersey,  Delaware,  Maryland,  divided. 

ay,  5 ; Massachusetts,  Pennsyl-  1 Maryland  alone  voted  against 
vania,  Virginia,  North  Carolina,  it. 


Ch.  IX  ] 


POWERS  OF  THE  SENATE. 


229 


fact  that  the  particular  nature  and  form  of  the  rep- 
resentation in  the  Senate  was  generally  acquiesced 
in,  when  its  relations  to  the  other  branches  of  the 
government  had  been  determined. 

The  difference  of  origin  of  the  two  branches  of 
the  legislature  made  it  necessary  to  provide  for  dif- 
ferent modes  of  supplying  the  vacancies  that  might 
occur  in  them.  The  obvious  way  of  effecting  this 
in  the  case  of  a vacancy  in  the  office  of  a repre- 
sentative was  to  order  a new  election  by  the  people, 
who  can  readily  assemble  for  such  a purpose ; and 
the  duty  of  ordering  such  elections  was  imposed  on 
the  executives  of  the  States,  because  those  func- 
tionaries would  be  best  informed  as  to  the  conven- 
ience of  their  meeting.  But  the  State  legislatures, 
to  whom  the  choice  of  senators  was  to  be  confided, 
would  be  in  session  for  only  a part  of  the  year ; and 
to  summon  them  for  the  special  purpose  of  filling 
a vacancy  in  the  Senate  might  occasion  great  incon- 
venience. The  committee  of  detail,  therefore,  pro- 
vided that  vacancies  in  the  Senate  might  be  supplied 
by  the  executive  of  the  State  until  the  next  meeting 
of  its  legislature. 

It  is  now  time  to  turn  to  the  examination  of  that 
great  scheme  of  separate  and  concurrent  powers, 
which  it  had  been  proposed  to  confer  upon  the  Sen- 
ate, and  the  suggestion  of  Avhich  influenced  to  a 
great  degree  the  qualifications  of  the  members,  their 
term  of  office,  and  indeed  the  entire  construction  of 
this  branch  of  the  legislature.  The  primary  pur- 
pose of  a Senate  was  that  of  a second  legislative 


230 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


chamber,  having  equal  authority  in  all  acts  of  legis- 
lation with  the  first,  the  action  of  both  being  neces- 
sary to  the  passage  of  a law.  As  the  formation  of 
the  Constitution  proceeded,  from  the  single  idea  of 
such  a second  chamber,  without  any  special  charac- 
ter of  representation  to  distinguish  it  from  the  first, 
up  to  the  plan  of  an  equal  representation  of  the 
States,  there  was  a strong  disposition  manifested  to 
accumulate  power  in  the  body  for  which  this  pecu- 
liar character  had  been  gained.  It  had  been  made 
the  depositary  of  a direct  and  equal  State  influence ; 
and  this  feature  of  the  system  had  become  fixed  and 
irrevocable  before  the  powers  of  the  other  depart- 
ments, or  their  origin  or  relations,  had  been  finally 
settled.  The  consequence  was,  that  for  a time, 
wherever  jealousy  was  felt  with  regard  to  the  exec- 
utive or  the  judiciary,  — wherever  there  was  a doubt 
about  confiding  in  the  direct  action  of  the  people,  — 
wherever  a chasm  presented  itself,  and  the  right 
mode  of  filling  it  did  not  occur,  — there  was  a ten- 
dency to  resort  to  the  Senate. 

Thus,  when  the  committee  of  detail  wrere  charged 
with  the  duty  of  preparing  the  Constitution  accord- 
ing to  the  resolutions  agreed  upon  in  the  Conven- 
tion, the  Senate  had  not  only  been  made  a legisla- 
tive body,  with  authority  co-ordinate  to  that  of  the 
House,  but  it  had  received  the  separate  power  of 
appointing  the  judges,  and  the  power  to  give  a sep- 
arate vote  in  the  election  of  the  executive.  The 
power  to  make  war  and  treaties,  the  appointment  of 
ambassadors,  and  the  trial  of  impeachments,  had  not 


Ch.  IX.] 


POWERS  OF  THE  SENATE. 


231 


been  distinctly  given  to  any  department;  but  the 
general  intention  to  be  inferred  from  the  resolutions 
was,  that  these  matters  should  be  vested  in  one  or 
both  of  the  two  branches  of  the  legislature.  To  the 
executive,  the  duty  had  been  assigned,  which  the 
name  of  the  office  implies,  of  executing  the  laws ; to 
which  had  been  added  a revisionary  check  upon 
legislation,  and  the  appointment  to  offices  in  cases 
not  otherwise  provided  for.  The  judicial  power  had 
been  described  in  general  and  comprehensive  terms, 
which  required  a particular  enumeration  of  the  cases 
embraced  by  the  principles  laid  down ; but  it  had 
not  been  distinctly  foreseen,  that  one  of  the  cases  to 
which  those  principles  must  lead  would  be  an  al- 
leged conflict  between  an  act  of  legislation  and  the 
fundamental  law  of  the  Constitution.  The  system 
thus  marked  out  was  carried  into  detail  by  the  com- 
mittee, by  vesting  in  the  Senate  the  power  to  make 
treaties,  to  appoint  ambassadors  and  judges  of  the 
Supreme  Court,  and  to  adjudicate  questions  of  boun- 
dary between  the  States;  by  giving  to  the  two 
branches  of  the  legislature  the  power  to  declare 
Avar ; by  assigning  the  trial  of  impeachments  to  the 
Supreme  Court,  and  enumerating  the  other  cases  of 
which  it  was  to  have  cognizance ; and  by  providing 
for  the  election  of  the  executive  by  the  legislature, 
and  confining  its  powers  and  duties  to  those  pre- 
scribed for  it  by  the  resolutions. 

It  is  scarcely  necessary  to  pause  for  the  purpose 
of  commenting  on  the  practical  inconveniences  of 
some  of  these  arrangements.  However  proper  it 


232 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


may  be,  in  a limited  and  republican  government,  to 
vest  the  power  of  declaring  war  in  the  legislative 
department,  the  negotiation  of  treaties  by  a numerous 
body  had  been  found,  in  our  own  experience,  and 
in  that  of  other  republics,  extremely  embarrassing. 
However  wise  may  be  a jealousy  of  the  executive 
department,  it  is  difficult  to  say  that  the  same  au- 
thority that  is  intrusted  with  the  appointment  to  all 
other  offices  should  not  be  permitted  to  make  an 
ambassador  or  a judge.  However  august  may  be  a 
proceeding  that  is  to  determine  a boundary  between 
sovereign  States,  it  is  nothing  more  and  nothing  less 
than  a strictly  judicial  controversy,  capable  of  trial 
in  the  ordinary  forms  and  tribunals  of  judicature, 
besides  being  one  that  ought  to  be  safely  removed 
from  all  political  influences.  However  necessary  it 
may  be  that  an  impeachment  should  be  conducted 
with  the  solemnities  and  safeguards  of  allegation 
and  proof,  it  is  not  always  to  be  decided  by  the  rules 
with  which  judges  are  most  familiar,  or  to  be  deter- 
mined by  that  body  of  law  which  it  is  their  special 
duty  to  administer.  However  desirable  it  may  be, 
that  an  elective  chief  magistracy  should  be  filled 
with  the  highest  capacity  and  fitness,  and  that  pop- 
ular tumults  should  be  avoided,  no  government  has 
yet  existed,  in  which  the  election  of  such  a magis- 
trate by  the  legislative  department  has  afforded  any 
decided  advantage  over  an  election  directly  or  indi- 
rectly by  the  people ; and  to  give  a body  constituted 
as  the  American  Senate  is  a negative  in  the  choice 
of  the  executive,  would  be  certainly  inconvenient, 
probably  dangerous. 


Ch.  IX.] 


POWERS  OF  THE  SENATE. 


233 


But  the  position  of  the  Senate  as  an  assembly  of 
the  States,  and  certain  opinions  of  its  superior  fitness 
for  the  discharge  of  some  of  these  duties,  had  united 
to  make  it  far  too  powerful  for  a safe  and  satisfac- 
tory operation  of  the  government.  It  was  found  to 
be  impossible  to  adjust  the  whole  machine  to  the 
quantity  of  power  that  had  been  given  to  one  of  its 
parts.  It  was  eminently  just  and  necessary  that  the 
States  should  have  an  equal  and  direct  representa- 
tion in  some  branch  of  the  government ; but  that  a 
majority  of  the  States,  containing  a minority  of  the 
people,  should  possess  a negative  in  the  appoint- 
ment of  the  executive,  and  in  the  question  of  peace 
or  war,  and  the  sole  voice  in  the  appointment  of 
judges  and  ambassadors,  was  neither  necessary  nor 
proper.  Theoretically,  it  might  seem  appropriate 
that  a question  of  boundary  between  any  two  of  the 
States  represented  in  it  should  be  committed  to  the 
Senate,  as  a court  of  the  peers  of  the  sovereign  par- 
ties to  the  dispute  ; but  practically,  this  would  be  a 
tribunal  not  well  fitted  to  try  a purely  judicial  ques- 
tion. It  became  necessary,  therefore,  to  discover 
the  true  limit  of  that  control  which  the  nature  of 
the  representation  in  the  Senate  was  to  be  allowed 
to  give  to  a majority  of  the  States.  There  had  been 
some  effort,  in  the  progress  of  the  controversy  re- 
specting the  representative  system,  to  confine  the 
equal  power  of  the  States,  in  matters  of  legislation, 
to  particular  questions  or  occasions ; but  it  had 
turned  out  to  be  impracticable  thus  to  divide  or 
limit  the  ordinary  legislative  authority  of  the  same 

30 


VOL.  II. 


234 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


body.  If  the  Senate,  as  an  equal  assembly  of  the 
States,  was  to  legislate  at  all,  it  must  legislate  upon  all 
subjects  by  the  same  rule  and  method  of  suffrage.  But 
when  the  question  presented  itself  as  to  the  separate 
action  of  this  assembly,  — how  far  it  should  be  in- 
vested with  the  appointment  of  other  functionaries, 
how  far  it  should  control  the  relations  of  the  coun- 
try with  foreign  nations,  how  far  it  should  partake 
both  of  executive  and  judicial  powers,  — it  was 
much  less  difficult  to  draw  the  line,  and  to  establish 
proper  limits  to  the  direct  agency  of  the  States. 
Those  limits  could  not  indeed  be  ascertained  by  the 
mere  application  of  theoretical  principles.  They 
were  to  be  found  in  the  primary  necessity  for  repos- 
ing greater  powers  in  other  departments,  for  adjust- 
ing the  relations  of  the  system  by  a wider  distribu- 
tion of  authority,  and  for  confiding  more  and  more 
in  the  intelligence  and  virtue  of  the  people;  and 
therefore  it  is,  that,  in  these  as  in  other  details  of 
the  Constitution,  we  are  to  look  for  the  clew  that  is 
to  give  us  the  purpose  and  design,  quite  as  much  to 
the  practical  compromises  Avhich  constantly  took 
place  between  opposite  interests,  as  to  any  triumph 
of  any  one  of  opposite  theories. 

The  first  experiment  that  was  made  towards  a re- 
striction of  the  power  of  the  Senate,  and  an  adjust- 
ment of  its  relations  to  the  other  departments,  was 
the  preparation  of  a plan,  by  which  the  President 
was  to  have  the  making  of  treaties,  and  the  appoint- 
ment of  ambassadors,  judges  of  the  Supreme  Court, 
and  all  other  officers  not  otherwise  provided  for,  by 


Ch.  IX.] 


POWERS  OF  THE  SENATE. 


235 


and  with  the  advice  and  consent  of  the  Senate.  The 
trial  of  impeachments,  of  the  President  included, 
was  transferred  to  the  Senate,  and  the  trial  of  ques- 
tions of  boundary  was  placed,  like  other  controver- 
sies between  States,  within  the  scope  of  the  judicial 
power.  The  choice  of  the  President  was  to  be  made 
in  the  first  instance  by  electors  appointed  by  each 
State,  in  such  manner  as  its  legislature  might  direct, 
each  State  to  have  a number  of  electors  equal  to  the 
whole  number  of  its  senators  and  representatives  in 
Congress ; but  if  no  one  of  the  persons  voted  for 
should  have  a majority  of  all  the  electors,  or  if  more 
than  one  person  should  have  both  a majority  and  an 
equal  number  of  votes,  the  Senate  were  to  choose  the 
President  from  the  five  highest  candidates  voted  for 
by  the  electors.  In  this  plan,  there  was  certainly  a 
considerable  increase  of  the  power  of  the  President  ; 
but  there  was  not  a sufficient  diminution  of  the  pow- 
er of  the  Senate.  The  President  could  nominate 
officers  and  negotiate  treaties ; but  he  must  obtain 
the  consent  of  the  body  by  whom  he  might  have 
been  elected,  and  by  whom  his  re-election  might  be 
determined,  if  he  were  again  to  become  a candidate. 
It  appeared,  therefore,  to  be  quite  necessary,  either 
to  take  away  the  revisionary  control  of  the  Senate 
over  treaties  and  appointments,  or  to  devise  some 
mode  by  which  the  President  could  be  made  person- 
ally independent  of  that  assembly.  He  could  be 
made  independent  only  by  taking  away  all  agency 
of  the  Senate  in  his  election,  or  by  making  him  in- 
eligible to  the  office  a second  time.  There  were  two 


236 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


serious  objections  to  the  last  of  these  remedies,  — the 
country  might  lose  the  services  of  a faithful  and 
experienced  magistrate,  whose  continuance  in  office 
would  be  highly  important;  and  even  in  a case 
where  no  pre-eminent  merit  had  challenged  a re- 
election,  the  effect  of  an  election  by  the  Senate  would 
always  be  pernicious,  and  must  be  visible  through- 
out the  whole  term  of  the  incumbent  who  had  been 
successful  over  four  other  competitors. 

And  after  all,  what  necessity  was  there  for  con- 
fiding this  vast  power  to  the  Senate,  opening  the 
door  of  a small  body  to  the  corruption  and  intrigue 
for  which  the  magnitude  of  the  prize  to  be  gained 
and  to  be  given,  and  the  facility  for  their  exercise, 
would  furnish  an  enormous  temptation'?'  Was  it  so 
necessary  that  the  States  should  force  their  equality 
of  privilege  and  of  power  into  every  department  of 
the  Constitution,  making  it  felt  not  only  in  all  acts 
of  legislation,  but  in  the  whole  administration  of  the 
executive  and  judicial  duties?  Was  nothing  due  to 
the  virtue  and  sense  and  patriotism  of  a majority  of 
the  people  of  the  United  States  ? Might  they  not 
reasonably  be  expected  to  constitute  a body  of  elec- 
tors, who,  chosen  for  the  express  purpose,  and  dis- 
solved as  soon  as  their  function  had  been  discharged, 
would  be  able  to  make  an  upright  and  intelligent 
choice  of  a chief  magistrate  from  among  the  eminent 
citizens  of  the  Union? 

Questions  like  these,  posterity  would  easily  believe, 
without  the  clear  record  that  has  descended  to  them, 
must  have  anxiously  and  deeply  employed  the  fram- 


Ch.  IX.] 


POWERS  OF  THE  SENATE. 


237 


ers  of  the  Constitution.  They  were  to  consider,  not 
only  what  was  theoretically  fit  and  what  would  prac- 
tically work  with  safety  and  success,  but  what  would 
be  accepted  by  the  people  for  whom  they  were  form- 
ing these  great  institutions.  That  people  undoubt- 
edly detested  everything  in  the  nature  of  a monarchy. 
But  there  was  another  thing  which  they  hated  with 
equal  intensity,  and  that  was  an  oligarchy.  Their 
experience  had  given  them  quite  as  much  reason  for 
abhorring  the  one  as  the  other.  Such,  at  least,  was 
their  view  of  that  experience.  A king,  it  is  true, 
was  the  chief  magistrate  of  the  mother  country 
against  which  they  had  rebelled,  against  which  they 
had  fought  successfully  for  their  independence.  The 
measures  that  drove  them  into  that  resistance  were 
executed  by  the  monarch ; but  those  measures  were 
planned,  as  they  believed,  by  a ministry  determined 
to  enslave  them,  and  were  sanctioned  by  a Parlia- 
ment in  which  even  the  so-called  popular  branch 
was  then  but  another  phase  of  the  aristocracy  which 
ruled  the  empire.  The  worst  enemy  our  grand- 
fathers supposed  they  had  in  England,  throughout 
their  Revolution,  was  the  ministerial  majority  of 
that  House  of  Commons,  made  up  of  placemen  sit- 
ting for  rotten  boroughs,  the  sons  of  peers,  and  the 
country  gentlemen,  who  belonged  to  a caste  as  much 
as  their  first-cousins  who  sat  by  titles  in  the  House 
of  Lords.  Our  ancestors  did  not  know  — they  went 
to  their  graves  without  knowing  — that  in  the  hard, 
implacable  temper  of  the  king,  made  harder  and 
more  implacable  by  a narrow  and  bigoted  conscien- 


238 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tiousness,  was  the  real  cause  for  the  persistency  in 
that  fatal  policy  which  severed  these  Colonies  from, 
his  crown. 

That  long  struggle  had  been  over  for  several  years, 
and  its  result  was  certainly  not  to  be  regretted  by 
the  people  of  America.  But  it  had  left  them,  as  it 
naturally  must  have  left  them,  with  as  strong  preju- 
dices and  jealousies  against  every  aristocratic,  as 
against  every  monarchical  institution.  Public  lib- 
erty in  England  they  knew  might  consist  with  an 
hereditary  throne,  and  with  a privileged  and  power- 
ful aristocracy.  But  public  liberty  in  America  could 
consist  with  neither.  The  people  of  the  United 
States  could  submit  to  restraints ; they  could  recog- 
nize the  necessity  for  checks  and  balances  in  the  dis- 
tribution of  authority ; and  they  understood  as  much 
of  the  science  of  government  as  any  people  then 
alive.  But  an  institution,  — however  originating 
and  however  apparently  necessary  its  peculiar  con- 
struction might  be,  — embracing  but  a small  num- 
ber of  persons,  with  power  to  elect  the  chief  magis- 
trate, with  power  to  revise  every  appointment  from 
a chief  justice  down  to  a tide  waiter,  with  power  to 
control  the  President  through  his  subordinate  agents, 
with  power  to  reject  every  treaty  that  he  might  ne- 
gotiate, and  with  power  to  sit  in  judgment  on  his 
impeachment,  they  would  not  endure.  “We  have, 
in  some  revolutions  of  this  plan  of  government,”  said 
Randolph,  “ made  a bold  stroke  for  monarchy.  We 
are  now  doing  the  same  for  an  aristocracy.” 

How  to  attain  the  true  intermediate  ground,  to 


Ch.  IX.) 


POWERS  OF  THE  SENATE. 


239 


avoid  the  substance  of  a monarchy  and  the  sub- 
stance of  an  aristocracy,  and  yet  not  to  found  the 
system  on  a mere  democracy,  was  a problem  not  easy 
of  solution.  All  could  see,  that  a government  ex- 
tended over  a country  so  large,  which  was  to  have 
the  regulation  of  its  commerce,  the  collection  of 
great  revenues,  the  care  of  a vast  public  domain,  the 
superintendence  of  intercourse  with  hordes  of  savage 
tribes,  the  control  of  relations  with  all  the  nations 
of  the  world,  the  administration  of  a peculiar  juris- 
prudence, and  the  protection  of  the  local  constitu- 
tions from  violence,  must  have  an  army  and  a navy, 
and  great  fiscal,  administrative,  and  judicial  establish- 
ments, embracing  a very  numerous  body  of  public 
officers.  To  give  the  appointment  of  such  a multi- 
tude of  public  servants,  invested  with  such  functions, 
to  the  unchecked  authority  of  the  President,  would 
be  to  create  an  executive  with  power  not  less  for- 
midable and  real  than  that  of  some  monarchs,  and 
far  greater  than  that  of  others.  No  one  desired  that 
a sole  power  of  appointment  should  be  vested  in  the 
President  alone;  it  was  universally  conceded  that 
there  must  be  a revision  ary  control  lodged  some- 
where, and  the  only  question  was  where  it  should 
be  placed.  That  it  ought  to  be  in  a body  indepen- 
dent of  the  executive,  and  not  in  any  council  of  min- 
isters that  might  be  assigned  to  him,  was  apparent ; 
and  there  was  no  such  body,  excepting  the  Senate, 
which  united  the  necessary  independence  with  the 
other  qualities  needful  for  a right  exercise  of  this 
power. 


i 


240 


FORMATION  OF  THE  CONSTITUTION.  (Book  IV. 


The  negotiation  of  treaties  was  obviously  a func- 
tion that  should  be  committed  to  the  executive 
alone.  But  a treaty  might  undertake  to  dismember 
a State  of  part  of  its  territory,  or  might  otherwise 
affect  its  individual  interests ; and  even  where  it 
concerned  only  the  general  interests  of  all  the  States, 
there  was  a great  unwillingness  to  intrust  the  treaty- 
making power  exclusively  to  the  President.  Here, 
the  States,  as  equal  political  sovereignties,  were  un- 
willing to  relax  their  hold  upon  the  general  govern- 
ment ; and  the  result  was  that  provision  of  the  Con- 
stitution which  makes  the  consent  of  two  thirds  of 
the  Senators  present  necessary  to  the  ratification  of 
a treaty. 

But  if  it  was  to  have  these  great  overruling  pow- 
ers, the  Senate  must  have  no  voice  in  the  appoint- 
ment of  the  executive.  There  were  two  modes  in 
’which  the  election  might  be  arranged,  so  as  to  pre- 
vent a mutual  connection  and  influence  between  the 
Senate  and  the  President.  The  one  was,  to  allow 
the  highest  number  of  electoral  votes  to  appoint  the 
President ; 1 the  other  was,  to  place  the  eventual 
election  — no  person  having  received  a majority  of 
all  the  electoral  votes  — in  the  House  of  Represent- 
atives. The  latter  plan  was  finally  adopted,  and  the 
Senate  was  thus  effectually  severed  from  a dangerous 
connection  with  the  executive. 

This  separation  having  been  effected,  the  objec- 
tions which  had  been  urged  against  the  length  of 
the  senatorial  term  became  of  little  consequence. 

1 This  suggestion  was  made  by  Hamilton.  Elliot,  V.  517. 


Ch.  LX] 


SENATORIAL  TERM. 


241 


In  the  preparation  of  the  plan  marked  out  in  the 
resolutions  sent  to  the  committee  of  detail,  the  Sen- 
ate had  been  considered  chiefly  with  reference  to  its 
legislative  function;  and  the  purpose  of  those  who 
advocated  a long  term  of  office  was  to  establish  a 
body  in  the  government  of  sufficient  wisdom  and 
firmness  to  interpose  against  the  impetuous  counsels 
and  levelling  tendencies  of  the  democratic  branch.1 
Six  years  was  adopted  as  an  intermediate  period  be- 
tween the  longest  and  the  shortest  of  the  terms  pro- 
posed; and  in  order  that  there  might  be  an  infu- 
sion of  different  views  and  tendencies  from  time  to 
time,  it  was  provided  that  one  third  of  the  members 
should  go  out  of  office  biennially.2  Still,  in  the  case 
of  each  individual  senator,  the  period  of  six  years 
was  the  longest  of  the  limited  terms  of  office  created 
by  the  Constitution.  Under  the  Confederation,  the 
members  of  the  Congress  had  been  chosen  annually, 
and  were  always  liable  to  recall.  The  people  of  the 
United  States  were  in  general  strongly  disposed  to  a 
frequency  of  elections.  A term  of  office  for  six  years 
would  be  that  feature  of  the  proposed  Senate  most 
likely,  in  the  popular  mind,  to  be  regarded  as  of  an 
aristocratic  tendency.  If  united  with  the  powers 
that  have  just  passed  under  our  review,  and  if  to 
those  powers  it  could  be  said  that  an  improper  in- 
fluence over  the  executive  had  been  added,  the  sys- 
tem would  in  all  probability  be  rejected  by  the  peo- 
ple. But  if  the  Senate  were  deprived  of  all  agency 

1 Madison,  Hamilton,  Wilson,  and  Read.  Elliot,  V.  241  - 245. 
June  26.  2 Ibid. 


VOL.  II. 


31 


242 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


in  the  appointment  of  the  President,  it  would  be 
mere  declamation  to  complain  of  their  term  of  office ; 
for  undoubtedly  the  peculiar  duties  assigned  to  the 
Senate  could  be  best  discharged  by  those  who  had 
had  the  longest  experience  in  them  The  solid  ob- 
jection to  such  a term  being  removed,  the  complaint 
of  aristocratic  tendencies  would  be  confined  to  those 
who  might  wish  to  find  plausible  reasons  for  opposi- 
tion, and  might  not  wish  to  be  satisfied  with  the  true 
reasons  for  the  provision. 

Having  now  described  the  formation  and  the  spe- 
cial powers  of  the  two  branches  of  the  legislature,  I 
proceed  to  inquire  into  the  origin  and  history  of  the 
disqualifications  to  which  the  members  were  sub- 
jected. 

The  Constitution  of  the  United  States  was  framed 
and  established  by  a generation  of  men,  who  had 
observed  the  operation  upon  the  English  legislature 
of  that  species  of  influence,  by  the  crown  or  its  ser- 
vants, which,  from  the  mode  of  its  exercise,  not  sel- 
dom amounting  to  actual  bribery,  has  received  the 
appropriate  name  of  parliamentary  corruption.  That 
generation  of  the  American  people  knew  but  little 
— they  cared  less  — about  the  origin  of  a method 
of  governing  the  legislative  body,  which  implies  an 
open  or  a secret  venality  on  the  part  of  its  members, 
and  a willingness  on  the  part  of  the  administration 
to  purchase  their  consent  to  its  measures.  What 
they  did  know  and  what  they  did  regard  was,  that 
for  a long  succession  of  years  the  votes  of  members 
of  Parliament  had  been  bought,  with  money  or  office, 


Ch.  IX.J 


PARLIAMENTARY  CORRUPTION. 


243 


by  nearly  every  minister  who  had  been  at  the  head 
of  affairs ; that,  if  this  practice  had  not  been  intro- 
duced under  the  prince  who  was  placed  upon  the 
throne  by  the  revolution  of  1688,  it  had  certainly 
grown  to  a kind  of  system  in  the  hands  of  the  states- 
men by  whom  that  revolution  was  effected,  and  had 
attained  its  greatest  height  under  the  first  two  prin- 
ces of  the  house  of  Hanover ; that  it  was  freely  and 
sometimes  shamefully  applied  throughout  the  Amer- 
ican war;  and  that,  down  to  that  day,  no  British 
statesman  had  had  the  sagacity  to  discover,  and  the 
virtue  to  adopt,  a purer  system  of  administration.1 
Whether  this  was  a necessary  vice  of  the  English 
constitution ; whether  it  was  inherent  or  temporary ; 
or  whether  it  was  only  a stage  in  the  development 
of  parliamentary  government,  destined  to  pass  away 
when  the  relations  of  the  representative  body  to  the 
people  had  become  better  settled,  — could  not  then 
be  seen  even  in  England.  But  to  our  ancestors, 
when  framing  their  Constitution,  it  presented  itself 
as  a momentous  fact;  whose  warning  was  not  the 


1 In  Horace  Walpole’s  Memoirs 
of  the  Reign  of  George  II.,  there 
is  an  amusing  parallel  — gravely 
drawn,  however  — between  the 
mode  in  which  his  father,  Sir  Rob- 
ert, “ traded  for  members,”  and  the 
manner  in  which  Mr.  Pelham  car- 
ried on  his  corruption.  Lord  Ma- 
hon has  called  Sir  Robert  Walpole 
“ the  patron  and  parent  of  parlia- 
mentary corruption.”  (Hist,  of 
England,  I.  268.)  But  both  Mr. 
Ilallam  and  Mr.  Macaulay  say  that 


it  originated  under  Charles  H.,  and 
both  admit  that  it  was  practised 
down  to  the  close  of  the  American 
war.  (Hallam’s  Const.  Hist.,  HI. 
255,  256,  351  — 356.  Macaulay’s 
Hist,  of  England,  III.  541-549.) 
The  latter,  in  a very  masterly  anal- 
ysis of  its  origin  and  history,  treats 
it  as  a local  disease,  incident  to  the 
growth  of  the  English  constitution. 
It  must  be  confessed,  that  it  had 
become  chronic. 


244 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


less  powerful,  because  it  came  from  the  centre  of  in- 
stitutions with  which  they  had  been  most  familiar, 
and  from  the  country  to  which  they  traced  their  ori- 
gin, — a country  in  which  parliamentary  govern- 
ment had  had  the  fairest  chances  for  success  that 
the  world  had  witnessed. 

Yet  it  would  not  have  been  easy  at  that  time,  as 
it  is  not  at  the  present,  and  as  it  may  never  be,  to 
define  with  absolute  precision  the  true  limits  which 
executive  influence  with  the  legislative  body  should 
not  be  suffered  to  pass.  Still  less  is  it  easy  to  say 
that  such  influence  ought  not  to  exist  at  all ; 1 al- 
though it  is  not  difficult  to  say  that  there  are  meth- 
ods in  which  it  should  not  be  suffered  to  be  exercised. 


The  more  elevated  and  more  clear-sighted  public  mo- 
rality of  the  present  age,  in  England  and  in  America, 
condemns  with  equal  severity  and  equal  justice  both 
the  giver  and  the  receiver  in  every  transaction  that 
can  be  regarded  as  a purchase  of  votes  upon  partic- 


ular measures  or  occasions, 

1 I am  quite  aware  of  the  danger 
of  reasoning  from  the  circumstances 
of  one  country  to  those  of  another, 
even  in  the  case  of  England  and  the 
United  States.  But  I avail  myself, 
in  support  of  the  text,  of  the  author- 
ity of  a writer,  whose  high  moral 
tone,  and  whose  profound  knowl- 
edge of  the  constitution  on  which 
he  has  written,  unite  to  make  it  un- 
necessary that  its  history  should  be 
written  again ; — I mean,  of  course, 
Mr.  Hallam.  He  pronounces  it  an 
extreme  supposition,  and  not  to  be 
pretended,  that  Parliament  was 


whatever  may  have  been 

ever  “ absolutely,  and  in  all  con- 
ceivable circumstances,  under  the 
control  of  the  sovereign,  whether 
through  intimidation  or  corrupt 
subservience.”  “ But,”  he  adds,  “ as 
it  would  equally  contradict  notori- 
ous truth  to  assert  that  every  vote 
has  been  disinterested  and  inde- 
pendent, the  degree  of  influence 
which  ought  to  he  permitted,  or  which 
has  at  any  time  existed,  becomes  one 
of  the  most  important  subjects  in  our 
constitutional  policy.”  (Const.  Hist., 

in.  35i.) 


Ch.  IX.] 


EXECUTIVE  INFLUENCE. 


245 


the  consideration  or  motive  of  the  bargain.  But 
whether  that  morality  goes,  or  ought  to  go,  farther, 
— whether  it  includes,  or  ought  to  include,  in  the 
same  condemnation,  every  form  of  influence  by  which 
an  administration  can  add  extrinsic  weight  to  the 
merits  of  its  measures,  — is  a question  that  admits 
of  discussion. 

It  may  be  said,  assuming  the  good  intentions  of 
an  administration,  and  the  correctness  of  its  policy 
and  measures,  that  its  policy  and  its  measures  should 
address  themselves  solely  to  the  patriotism  and  sense 
of  right  of  the  members  of  the  legislative  department. 
But  an  ever  active  patriotism  and  a never  failing 
sense  of  right  are  not  always,  if  often,  to  be  found ; 
the  members  of  a legislative  body  are  men,  with  the 
imperfections,  the  failings,  and  the  passions  of  men ; 
and  if  pure  patriotism  and  right  perceptions  of  duty 
are  alone  relied  upon,  they  may,  and  sometimes  in- 
evitably will  be,  found  wanting.  On  the  other  hand, 
it  is  just  as  true,  that  the  persons  composing  every 
administration  are  mere  men,  and  that  it  will  not  do 
to  assume  their  wisdom  and  good  intentions  as  the 
sole  foundations  on  which  to  rest  the  public  security, 
leaving  them  at  liberty  to  use  all  the  appliances  that 
may  be  found  effectual  for  gaining  right  ends,  and 
overlooking  the  character  of  the  means.  One  of  the 
principal  reasons  for  the  establishment  of  different 
departments,  in  the  class  of  governments  to  which 
ours  belongs,  is,  that  perfect  virtue  and  unerring 
wisdom  are  not  to  be  predicated  of  any  man  in 
any  station.  If  they  were,  a simple  despotism 


246 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


would  be  the  best  and  the  only  necessary  form  of 
government. 

All  correct  reasoning  on  this  subject,  and  all  true 
construction  of  governments  like  ours,  must  com- 
mence with  two  propositions,  one  of  which  embraces 
a truth  of  political  science,  and  the  other  a truth  of 
general  morals.  The  first  is,  that,  while  the  differ- 
ent functions  of  government  are  to  be  distributed 
among  different  persons,  and  to  be  kept  distinctly 
separated,  in  order  that  there  may  be  both  division 
of  labor  and  checks  against  the  abuse  of  power,  it  is 
occasionally  necessary  that  some  room  should  be  al- 
lowed for  supplying  the  want  of  wisdom  or  virtue  in 
one  department  by  the  wisdom  or  virtue  of  another. 
In  matters  of  government  depending  on  mere  dis- 
cretion, unlimited  confidence  cannot  with  safety  be 
placed  anywhere.1  The  other  proposition  is  the 
very  plain  axiom  in  morals,  that,  while  in  all  human 
transactions  there  may  be  bad  means  employed  to 
effect  a worthy  object,  the  character  of  those  means 
can  never  be  altered,  nor  their  use  justified,  by  the 


1 The  position  and  functions  of 
the  judiciary,  after  proper  meas- 
ures have  been  taken  to  secure  in- 
dividual capacity  and  integrity,  do 
admit  and  require  •what  may  be 
called  absolute  confidence.  That 
is  to  say,  their  action  is  not  only 
final  and  conclusive,  but  it  is  never 
legitimately  open  to  the  influence 
of  any  other  department.  The 
reason  is,  that  their  action  does  not 
proceed  from  individual  discretion, 
but  is  regulated  by  the  principles 


of  a moral  science,  whose  existence 
is  wholly  independent  of  the  will  of 
the  particular  judge.  Whereas  the 
action  of  both  the  executive  and 
the  legislative  departments,  within 
the  limits  prescribed  to  it  by  the 
fundamental  law,  involves  the  ex- 
ercise, to  a wide  extent,  of  mere  in- 
dividual discretion.  The  remedy 
for  a failure  in  the  judge  to  justify 
the  confidence  reposed  in  him  is, 
therefore,  only  by  impeachment. 


Ch.  IX.] 


EXECUTIVE  INFLUENCE. 


247 


character  of  the  end.  With  these  two  propositions 
admitted,  what  is  to  be  done  is  to  discover  that  ar- 
rangement of  the  powers  and  relations  of  the  different 
departments  whose  acts  involve,  more  or  less,  the  ex- 
ercise of  pure  discretion,  which  will  give  the  best 
effect  to  both  of  these  truths ; and  as  all  government 
and  all  details  of  government,  to  be  useful,  must  be 
practically  adapted  to  the  nature  of  man,  it  will  be 
found  that  an  approximation  in  practice  to  a perfect 
theory  is  all  that  can  be  attained. 

Thus  the  general  duties  and  powers  of  the  legis- 
lative and  the  executive  departments  are  capable  of 
distinct  separation.  The  one  is  to  make,  the  other 
is  to  execute  the  laws.  But  execution  of  the  laws 
of  necessity  involves  administration,  and  adminis- 
tration makes  it  necessary  that  there  should  be  an 
executive  policy.  To  carry  out  that  policy  requires 
new  laws ; authority  must  be  obtained  to  do  acts  not 
before  authorized ; and  supplies  must  be  perpetually 
renewed.  The  executive  stands  therefore  in  a close 
relation  to  the  legislative  department ; — a relation 
which  makes  it  necessary  for  the  one  to  appeal  fre- 
quently, and  indeed  constantly,  to  the  discretion  of 
the  other.  If  the  executive  is  left  at  liberty  to  pur- 
chase what  it  believes  or  alleges  to  be  the  right  ex- 
ercise of  that  discretion,  by  the  inducements  of  money 
or  office  applied  to  a particular  case,  the  rule  of  com- 
mon morals  is  violated ; conscience  becomes  false  to 
duty,  and  corruption,  having  once  entered  the  body 
politic,  may  be  employed  to  effect  bad  ends  as  well 
as  good.  Nay,  as  bad  ends  will  stand  most  in  need 


248 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  its  influence,  it  will  be  applied  the  most  grossly 
where  the  object  to  be  attained  is  the  most  culpable. 
On  the  other  hand,  if  the  members  of  the  legislative 
body,  by  being  made  incapable  of  accepting  the 
higher  or  more  lucrative  offices  of  state,  are  cut  off 
from  those  inducements  to  right  conduct  and  a true 
ambition  which  the  imperfections  of  our  nature  have 
made  not  only  powerful,  but  sometimes  necessary, 
aids  to  virtue,  the  public  service  may  have  no  other 
security  than  their  uncertain  impulses  or  imperfect 
judgments.  In  the  midst  of  such  tendencies  to  op- 
posite mischiefs,  all  that  human  wisdom  and  fore- 
sight can  do  is,  to  anticipate  and  prevent  the  evils  of 
both  extremes,  by  provisions  which  will  guard  both 
the  interests  of  morality  and  the  interests  of  polit- 
ical expediency  as  completely  as  circumstances  will 
allow. 

I am  persuaded  it  was  upon  such  principles  as  I 
have  thus  endeavored  to  state,  that  the  framers  of 
our  national  Constitution  intended  to  regulate  this 
very  difficult  part  of  the  relations  between  the  ex- 
ecutive and  the  legislature.  During  a considerable 
period,  however,  of  their  deliberations  on  the  dis- 
abilities to  which  it  would  be  proper  to  subject  the 
members  of  the  latter  department,  they  had  another 
example  before  them  besides  that  afforded  by  the 
history  of  parliamentary  corruption  in  England. 
The  Congress  of  the  Confederation  had  of  course 
the  sole  power  of  appointment  to  offices  under  the 
authority  of  the  United  States ; and  although  there 
is  no  reason  to  suppose  that  body  at  any  time  to 


Ch.  IX.] 


EXECUTIVE  INFLUENCE. 


249 


have  been  justly  chargeable  with  corrupt  motives, 
there  were  complaints  of  the  frequency  with  which 
it  had  filled  the  offices  which  it  had  created  with  its 
own  members.  In  these  complaints,  the  people 
overlooked  the  justification.  They  forgot  that  the 
nature  of  the  government,  and  the  circumstances  of 
the  country,  rendered  it  difficult  for  an  assembly 
which  both  made  and  filled  the  offices,  and  which 
exercised  its  functions  at  a time  when  the  State 
governments  absorbed  by  far  the  greater  part  of 
the  interests  and  attention  of  their  citizens,  to  find 
suitable  men  out  of  its  own  ranks.  In  that  con- 
dition of  things,  it  might  have  been  expected,  — 
and  it  implies  no  improper  purpose,  — that  offices 
would  be  sometimes  framed  or  regulated  with  a view 
to  their  being  filled  by  particular  persons.  But  the 
complaints  existed ; 1 the  evil  was  one  that  tended 
constantly  to  become  worse  ; and,  in  framing  the 
new  government,  this  was  the  first  aspect  in  which 
the  influence  of  office  and  its  emoluments  presented 
itself  to  the  Convention. 

For  when  the  Virginia  members,  through  Ed- 
mund Randolph,  brought  forward  their  scheme  of 

1 The  legislature  of  Massaehu-  benefit  could  receive  any  salary, 
setts  had,  before  Congress  recom-  fee,  or  emolument.  This  instruc- 
mended  the  national  Convention,  tion  was  repealed,  by  the  unquali- 
instructed  its  delegates  in  Congress  fied  manner  in  which  the  State 
not  to  agree  to  any  modification  of  accepted  the  recommendation  for 
the  fifth  Article  of  the  Confedera-  a national  Convention.  But  it 
tion,  which  prohibited  the  members  shows  the  sentiment  of  the  State 
of  Congress  from  holding  any  office  on  this  point,  and  it  also  shows 
under  the  United  States,  for  which  the  jealousy  that  was  felt, 
they  or  any  other  person  for  their 


VOL.  II. 


32 


250 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


government,  they  not  only  gave  the  executive  no 
power  of  appointment  to  any  office,  but  they  pro- 
posed to  vest  the  appointment  of  both  the  executive 
and  the  judiciary  in  the  legislature.  Hence  they 
felt  the  necessity  of  guarding  against  the  abuse 
that  might  follow,  if  the  members  of  the  legislature 
were  to  be  left  at  liberty  to  appoint  each  other  to 
office,  — an  abuse  which  they  knew  had  been  im- 
puted to  the  Congress,  and  which  they  declared  had 
been  grossly  practised  by  their  own  legislature.1 
They  proposed,  therefore,  to  go  beyond  the  Con- 
federation, and  to  make  the  members  of  both 
branches  ineligible  to  any  office  established  under 
the  authority  of  the  United  States,  (excepting  those 
peculiarly  belonging  to  their  own  functions,)  during 
their  term  of  service  and  for  one  year  after  its  ex- 
piration. This  provision  passed  the  committee  of 
the  whole ; but  in  the  Convention,  on  a motion 
made  by  Mr.  Gorham  to  strike  it  out,  the  votes  of 
the  States  were  divided.  An  effort  was  then  made 
by  Mr.  Madison  to  find  a middle  ground,  between 
an  eligibility  in  all  cases  and  an  absolute  disquali- 
fication. If  the  unnecessary  creation  of  offices  and 
the  increase  of  salaries  was  the  principal  evil  to  be 
anticipated,  he  believed  that  the  door  might  be  shut 
against  that  abuse,  and  might  properly  be  left  open 
for  the  appointment  of  members  to  places  not  affect- 
ed by  their  own  votes,  as  an  encouragement  to  the 
legislative  service.  But  there  were  several  of  the 

1 See  the  assertion  by  Mr.  Mason,  and  the  admission  by  Mr.  Madison, 
Elliot,  V.  230,  232. 


Ch.  IX.]  DISQUALIFICATIONS  OF  MEMBERS. 


251 


stern  patriots  of  the  Convention  who  insisted  on  a 
total  exclusion,  and  who  denied  that  there  was  any 
such  necessity  for  holding  out  inducements  to  en- 
ter the  legislature.1  This  was  a question  on  which 
different  minds,  of  equal  sagacity  and  equal  puri- 
ty, would  naturally  arrive  at  different  conclusions. 
Still,  it  is  apparent  that  the  mischiefs  most  appre- 
hended at  the  time  of  Mr.  Madison’s  proposition 
would  be  in  a great  degree  prevented,  by  taking 
from  the  legislature  the  power  of  appointing  to 
office ; and  that  this  modification  of  the  system  was 
what  was  needed,  to  make  his  plan  a true  remedy 
for  the  abuses  that  had  been  displayed  in  our  own 
experience.  The  stigma  of  venality  cannot  properly 
be  applied  to  the  laudable  ambition  of  rising  into 
the  honorable  offices  of  a free  government;  and  if 
the  opportunity  to  create  places,  or  to  increase  their 
emoluments,  and  then  to  secure  those  places,  is  taken 
away,  by  vesting  the  appointment  in  the  execu- 
tive, the  question  turns  mainly  on  the  relations  that 
ought  to  exist  between  that  department  and  the 
legislature.  But  Mr.  Madison’s  suggestion  was 
made  before  it  was  ascertained  that  the  executive 
would  have  any  power  of  appoinment,  and  it  was 
accordingly  rejected ; — a majority  of  the  delegations 
considering  it  best  to  retain  the  ineligibility  in  all 
cases,  as  proposed  by  the  Virginia  plan.2  In  this 
way,  the  disqualification  became  incorporated  into 

1 Butler,  Mason,  and  Rutledge.  son’s  amendment.  June  23.  El- 

2 Two  States  only,  Connecticut  liot,  V.  230-233. 
and  New  Jersey,  voted  for  Madi- 


252 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  first  draft  of  the  Constitution,  prepared  by  the 
committee  of  detail.1 

But  by  this  time  it  was  known  that  a large  part 
of  the  patronage  of  the  government  must  be  placed 
in  the  hands  of  the  President ; for  it  had  been  set- 
tled that  he  was  to  appoint  to  all  offices  not  other- 
wise provided  for,  and  the  cases  thus  excepted  were 
those  of  judges  and  ambassadors,  which  stood,  in 
this  draft  of  the  Constitution,  vested  in  the  Senate. 
A strong  opposition  to  this  arrangement,  however, 
had  already  manifested  itself,  and  the  result  was  very 
likely  to  be,  — as  it  in  fact  turned  out,  — that  nearly 
the  whole  of  the  appointments  would  be  made  on  the 
nomination  of  the  President,  even  if  the  Senate  were 
to  be  empowered  to  confirm  or  reject  them.  Accord- 
ingly, when  this  clause  came  under  consideration,  the 
principle  of  an  absolute  disqualification  for  office  was 
vigorously  attacked,  and  as  vigorously  defended. 
The  inconvenience  and  impolicy  of  excluding  officers 
of  the  army  and  navy  from  the  legislature ; of  ren- 
dering it  impossible  for  the  executive  to  select  a 
commander-in-chief  from  among  the  members,  in 
cases  of  pre-eminent  fitness ; of  refusing  seats  to 
the  heads  of  executive  departments ; and  of  closing 
the  legislature  as  an  avenue  to  other  branches  of  the 
public  service,  — were  all  strenuously  urged  and  de- 
nied.2 At  length,  a middle  course  became  necessary, 

1 The  disqualification,  as  ap-  committee  of  detail.  Elliot,  V. 
plied  to  members  of  both  houses,  377. 

•was  incorporated  into  one  clause.  2 See  the  debate,  August  14. 
Art.  VI.  § 9 of  the  draft  of  the  Elliot,  V.  420 -425. 


Ch.  IX.] 


EXECUTIVE  INFLUENCE. 


253 


to  reconcile  all  opinions.  By  a very  close  vote,  the 
ineligibility  was  restrained  to  cases  in  which  the 
office  had  been  created,  or  the  emolument  of  it  in- 
creased, during  the  term  of  membership  ;x  and  a seat 
in  the  legislature  was  made  incompatible  with  any 
other  office  under  the  United  States.3 

Some  at  least  of  the  probable  sources  of  corruption 
were  cut  off  by  these  provisions.  The  executive  can 
make  no  bargain  for  a vote,  by  the  promise  of  an 
office  which  has  been  acted  upon  by  the  member 
whose  vote  is  sought  for ; and  there  can  be  no  body 
of  placemen,  ready  at  all  times  to  sell  their  votes  as 
the  price  for  which  they  are  permitted  to  retain  their 
places.  At  the  same  time,  the  executive  is  not  deprived 
of  the  influence  which  attends  the  power  of  appoint- 
ing to  offices  not  created,  or  the  emoluments  of  which 
have  not  been  increased,  by  any  Congress  of  which 
the  person  appointed  has  been  a member.  This  in- 
fluence is  capable  of  abuse ; it  is  also  capable  of 
being  honorably  and  beneficially  exerted.  Whether 
it  shall  be  employed  corruptly  or  honestly,  for  good 
or  for  bad  purposes,  is  left  by  the  Constitution  to  the 
restraints  of  personal  virtue  and  the  chastisements  of 
public  opinion. 

A serious  question,  however,  has  been  made, 
whether  the  interests  of  the  public  service,  involved 
in  the  relations  of  the  two  departments,  would  not 
have  been  placed  upon  a better  footing,  if  some  of 

1 There  was  a majority  of  only 1  2 This  provision  received  a unan- 

one  State  in  favor  of  this  principle,  imous  vote.  Ibid. 

Elliot,  V.  506. 


254 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  higher  officers  of  state  had  been  admitted  to  hold 
seats  in  the  legislature.  Under  the  English  consti- 
tution, there  is  no  practical  difficulty,  at  least  in 
modern  times,  in  determining  the  general  principle 
that  is  to  distinguish  between  the  class  of  officers 
who  can,  and  those  who  cannot,  be  usefully  allowed 
to  have  seats  in  the  House  of  Commons.  The  prin- 
ciple which,  after  much  inconsistent  legislation  and 
many  abortive  attempts  to  legislate,  has  generally 
been  acted  on  since  the  reign  of  George  II.,  is,  that 
it  is  both  necessary  and  useful  to  have  in  that  House 
some  of  the  higher  functionaries  of  the  administra- 
tion ; but  that  it  is  not  at  all  necessary,  and  not 
useful,  to  allow  the  privilege  of  sitting  in  Parlia- 
ment to  subordinate  officers.1  The  necessity  of  the 
case  arises  altogether  from  the  peculiar  relations  of 
the  ministry  to  the  crown,  and  of  the  latter  to  the 
Commons.  If  the  executive  government  were  not 
admitted,  through  any  of  its  members,  to  explain 
and  vindicate  its  measures,  to  advocate  new  grants 
of  authority,  or  to  defend  the  prerogatives  of  the 
crown,  the  popular  branch  of  the  legislature  would 
either  become  the  predominant  power  in  the  state, 
or  sink  into  insignificance.  This  is  conceded  by  the 
severest  writers  on  the  English  government. 

But  when  we  pass  from  a civil  polity  which  it  has 
taken  centuries  to  produce,  and  which  has  had  its 
departments  adjusted  much  less  by  reference  to 

1 For  the  history  of  what  have  351.  Macaulay,  IV.  336  - 338, 
been  called  place-bills,  see  Hal-  339,  341,  342,  479,  480,  528. 
lam’s  Const.  Hist.,  HI.  255,  256, 


Ch.  IX.] 


EXECUTIVE  INFLUENCE. 


255 


exact  principles  than  by  the  results  of  their  suc- 
cessive struggles  for  supremacy  over  each  other, 
and  when  we  come  to  an  original  distribution  of 
powers,  in  the  arrangements  of  a constitution  made 
entire  and  at  once  by  a single  act  of  the  national 
will,  we  must  not  give  too  much  effect  to  analogies 
which  after  all  are  far  from  being  complete.  In  pre- 
paring the  Constitution  of  the  United  States,  its 
framers  had  no  prerogative,  in  any  way  resembling 
that  of  the  crown  of  England,  to  consider  and  pro- 
vide for.  The  separate  powers  to  be  conferred  on 
the  chief  magistracy  — aside  from  its  concurrence  in 
legislation  — were  simply  executive  and  administra- 
tive ; the  office  was  to  be  elective,  and  not  hereditary ; 
and  its  functions,  like  those  of  the  legislature,  were 
to  be  prescribed  with  all  the  exactness  of  which  a 
written  instrument  is  capable.  There  was,  there- 
fore, little  of  such  danger  that  the  one  department 
would  silently  or  openly  encroach'  on  the  rights  or 
usurp  the  powers  of  the  other,  as  there  is  where  there 
exists  hereditary  right  on  the  one  side  and  customary 
right  on  the  other,  and  where  the  boundaries  between 
the  two  departments  are  to  be  traced  by  the  aid  of 
ancient  traditions,  or  collected  from  numerous  and 
perhaps  conflicting  precedents.  There  was  no  such 
necessity,  therefore,  as  there  is  in  England,  for  placing 
members  of  the  administration  in  the  legislature,  in 
order  to  preserve  the  balance  of  the  Constitution. 
The  sole  question  with  us  was,  whether  the  public 
convenience  required  that  the  administration  should 
be  able  to  act  directly  upon  the  course  of  legislation. 


256 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  prevailing  opinion  was  that  this  was  not  re- 
quired. This  opinion  was  undoubtedly  formed  un- 
der the  fear  of  corruption  and  the  jealousy  of  execu- 
tive power,  chiefly  produced  — and  justly  produced 
— by  the  example  of  what  had  long  existed  in 
England.  That  the  error,  if  any  was  committed, 
lay  on  the  safer  side,  none  can  doubt.  It  is  pos- 
sible that  the  chances  of  a corrupt  influence  would 
not  have  been  increased,  and  that  the  opportunities 
for  a salutary  influence  might  have  been  enlarged,  — 
as  it  is  highly  probable  that  the  convenience  of  com- 
munication would  have  been  promoted,  — if  some  of 
the  higher  officers  of  state  could  have  been  allowed 
to  hold  seats  in  either  house  of  Congess.  But  it  is 
difficult  to  see  how  this  could  have  been  successfully 
practised,  under  the  system  of  representation  and 
election  which  the  framers  of  the  Constitution  were 
obliged  to  establish : and  perhaps  this  is  a decisive 
answer  to  the  objection.1 


1 Mr.  Justice  Story  has  suggest- 
ed, that,  “ if  it  would  not  have  been 
safe  to  trust  the  heads  of  depart- 
ments, as  representatives,  to  the 
choice  of  the  people,  as  their  con- 
stituents, it  would  have  been  at 
least  some  gain  to  have  allowed 
them  a seat,  like  territorial  dele- 
gates, in  the  House  of  Represent- 
atives, where  they  might  freely 
debate  without  a title  to  vote.” 
(Commentaries  on  the  Constitu- 
tion, I.  § 869.)  An  officer  of  an 
executive  department,  thus  admit- 
ted to  a seat  in  Congress,  must 
have  been  placed  there  merely  in 


virtue  of  his  office,  by  a special 
provision.  He  could  have  repre- 
sented no  real  constituency,  and 
must  therefore  have  had  an  anom- 
alous position.  A territorial  dele- 
gate is  admitted  as  the  represent- 
ative of  a dependency,  somewhat 
colonial  in  its  nature,  whose  inhab- 
itants are  not  on  an  equal  footing 
with  the  constituencies  of  the  States. 
He  has  therefore  no  vote.  When 
speaking  for  the  interests  of  those 
whom  he  represents,  he  is  in  some- 
what the  same  attitude  as  counsel 
admitted  to  be  heard  at  the  bar  of 
the  House.  Whether  the  head  of 


Ch.  IX.]  TIME  AND  PLACE  FOR  ELECTIONS. 


257 


Among  the  powers  conceded  by  the  Constitution 
to  the  legislature  of  each  State  is  that  of  prescribing 
the  time,  place,  and  manner  of  holding  the  elections 
of  its  senators  and  representatives  in  Congress.  This 
provision 1 originated  with  the  committee  of  detail ; 
but,  as  it  was  reported  by  them,  there  was  no  other 
authority  reserved  to  Congress  itself  than  that  of  al- 
tering the  regulations  of  the  States ; and  this  author- 
ity extended  as  well  to  the  place  of  choosing  the 
senators,  as  to  all  the  other  circumstances  of  the 
election.2  In  the  Convention,  however,  the  author- 
ity of  Congress  was  extended  beyond  the  alteration 
of  State  regulations,  so  as  to  embrace  a power  to 
make  rules,  as  well  as  to  alter  those  made  by  the 
States.  But  the  place  of  choosing  the  senators  was 
excepted  altogether  from  this  restraining  authority, 
and  left  to  the  States.3  Mr.  Madison,  in  his  minutes, 
adds  the  explanation,  that  the  power  of  Congress  to 
make  regulations  was  supplied,  in  order  to  enable 
them  to  regulate  the  elections,  if  the  States  should 
fail  or  refuse  to  do  so.4  But  the  text  of  the  Consti- 
tution, as  finally  settled,  gives  authority  to  Congress 
at  “ any  time  ” to  “ make  or  alter  such  regulations  ” ; 
and  this  would  seem  to  confer  a power,  which,  when 
exercised,  must  be  paramount,  whether  a State  regu- 
lation exists  at  the  time  or  not. 

There  is  one  other  peculiarity  of  the  American 

an  executive  department  could  with  2 Art.  VI.  § 1 of  the  first 
dignity  and  convenience  be  placed  draft. 

in  a similar  position,  admits  at  least  3 Madison,  Elliot,  V.  401,  402. 
of  grave  doubt.  Journal,  Elliot,  I.  309. 

1 Art.  I.  § 4 of  the  Constitution.  4 Elliot,  V.  402. 

vol.  ii.  33 


258 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


legislature,  of  which  it  is  proper  in  this  connection 
to  give  a brief  account;  namely,  the  compensation 
of  its  members  for  their  public  services.  In  the  plan 
presented  by  the  Virginia  delegation,  it  was  proposed 
that  the  members  of  both  branches  should  receive 
“ liberal  stipends  ” ; but  it  was  not  suggested  wheth- 
er they  were  to  be  paid  by  the  States,  or  from  the 
national  treasury.  The  committee  of  the  whole  de- 
termined to  adopt  the  latter  mode  of  payment ; and 
as  the  representation  in  both  branches,  according  to 
the  first  decision,  wras  to  be  of  the  same  character, 
no  reason  was  then  suggested  for  making  a differ- 
ence in  the  source  of  their  compensation.  But  when 
the  construction  of  the  Senate  was  considered  in  the 
Convention,  the  idea  was  suggested  that  this  body 
ought  in  some  way  to  represent  wealth ; and  it  was 
apparently  under  the  influence  of  this  suggestion, 
that,  after  a refusal  to  provide  for  a payment  of  the 
senators  by  their  States,  payment  out  of  the  national 
treasury  was  stricken  from  the  resolution  under  de- 
bate.1 There  was  thus  introduced  into  the  resolu- 
tions sent  to  the  committee  of  detail,  a discrepancy 
between  the  modes  of  compensating  the  members  of 
the  two  branches;  for  while  the  members  of  the 
House  were  to  be  paid  “ an  adequate  compensation” 
out  of  “ the  public  treasury,”  the  Senate  were  to  re- 
ceive “ a compensation  for  the  devotion  of  their  time 
to  the  public  service,”  but  the  source  of  payment  was 
not  designated.  But  when  the  whole  body  of  those 
resolutions  had  been  acted  on,  the  character  of  the 


1 Elliot,  V.  247. 


Ch.  IX.] 


PAY  OF  MEMBERS. 


259 


representation  in  the  Senate  had  been  settled,  and 
the  idea  of  its  being  made  a representation  of  wealth, 
in  any  sense,  had  been  rejected.  The  committee  of 
detail  had,  therefore,  in  giving  effect  to  the  decisions 
of  the  Convention,  to  consider  merely  whether  the 
members  of  the  two  branches  should  be  paid  by  their 
States,  or  from  the  national  treasury;  and  for  the 
purpose  of  making  the  same  provision  as  to  both, 
and  in  order  to  avoid  the  question  whether  the  Con- 
stitution should  establish  the  amount,  or  should 
leave  it  to  be  regulated  by  the  Congress  itself,  they 
provided  that  the  members  of  each  house  should  re- 
ceive a compensation  for  their  services,  to  be  ascer- 
tained and  paid  by  the  State  in  which  they  should 
be  chosen.1 

This,  however,  was  to  encounter  far  greater  evils 
than  it  avoided.  If  paid  by  their  States,  the  mem- 
bers of  the  national  legislature  would  not  only  re- 
ceive different  compensations,  but  they  would  be 
directly  subjected  to  the  prejudices,  caprices,  and 
political  purposes  of  the  State  legislatures.  What- 
ever theory  might  be  maintained  with  respect  to 
the  relations  between  the  representatives,  in  either 
branch,  and  the  State  in  which  they  were  chosen, 
or  the  people  of  the  States,  to  subject  one  class  of 
public  servants  to  the  power  of  another  class  could 
not  fail  to  produce  the  most  mischievous  consequen- 
ces. A large  majority  of  the  States,  therefore,  de- 
cided upon  payment  out  of  the  national  treasury,2 

1 Art.  VI.  § 10  of  the  first  draft.  2 Massachusetts  and  South  Car- 
Elliot,  V.  378.  olina  in  the  negative. 


260 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and  it  was  finally  determined  that  the  rate  of  com- 
pensation should  not  be  fixed  by  the  Constitution, 
but  should  be  left  to  be  ascertained  by  law.1 

Among  the  separate  functions  assigned  by  the 
Constitution  to  the  houses  of  Congress  are  those  of 
presenting  and  trying  impeachments.  An  impeach- 
ment, in  the  report  of  the  committee  of  detail,  was 
treated  as  an  ordinary  judicial  proceeding,  and  was 
placed  within  the  jurisdiction  of  the  Supreme  Court. 
That  this  was  not  in  all  respects  a suitable  provision, 
will  appear  from  the  following  considerations.  Al- 
though an  impeachment  may  involve  an  inquiry 
whether  a crime  against  any  positive  law  has  been 
committed,  yet  it  is  not  necessarily  a trial  for  crime  ; 
nor  is  there  any  necessity,  in  the  case  of  crimes  com- 
mitted by  public  officers,  for  the  institution  of  any 
special  proceeding  for  the  infliction  of  the  punish- 
ment prescribed  by  the  laws,  since  they,  like  all 
other  persons,  are  amenable  to  the  ordinary  jurisdic- 
tion of  the  courts  of  justice,  in  respect  of  offences 
against  positive  law.  The  purposes  of  an  impeach- 
ment lie  wholly  beyond  the  penalties  of  the  statute 
or  the  customary  law.  The  object  of  the  proceeding 
is  to  ascertain  whether  cause  exists  for  removing  a 
public  officer  from  office.  Such  a cause  may  be 
found  in  the  fact,  that,  either  in  the  discharge  of  his 
office,  or  aside  from  its  functions,  he  has  violated  a 
law,  or  committed  what  is  technically  denominated 
a crime.  But  a cause  for  removal  from  office  may 

1 See  the  discussion  on  Art.  YI.  § 10  of  the  first  draft.  Elliot,  Y. 
425-427. 


Ch.  IX.] 


IMPEACHMENTS. 


261 


exist,  where  no  offence  against  positive  law  has  been 
committed,  as  where  the  individual  has,  from  immo- 
rality or  imbecility  or  maladministration,  become 
unfit  to  exercise  the  office.  The  rules  by  which  an 
impeachment  is  to  be  determined  are  therefore  pe- 
culiar, and  are  not  fully  embraced  by  those  princi- 
ples or  provisions  of  law  which  courts  of  ordinary 
jurisdiction  are  required  to  administer. 

From  considerations  of  this  kind,  especially  when 
applied  to  the  impeachment  of  a President  of  the 
United  States,  the  Convention  found  it  expedient  to 
place  the  trial  in  the  Senate.  In  fact,  the  whole 
subject  of  impeachments,  as  finally  settled  in  the 
Constitution,  received  its  impress  in  a great  degree 
from  the  attention  that  was  paid  to  the  bearing  of 
this  power  upon  the  executive.  Few  members  of 
the  Convention  were  willing  to  constitute  a single 
executive,  with  such  powers  as  were  proposed  to  be 
given  to  the  President,  without  subjecting  him  to 
removal  from  office  on  impeachment;  and  when  it 
was  perceived  to  be  necessary  to  confer  upon  him 
the  appointment  of  the  judges,  it  became  equally 
necessary  to  provide  some  other  tribunal  than  the 
Supreme  Court  for  the  trial  of  his  impeachment. 
There  was  no  other  body  already  provided  for  in  the 
government,  with  whom  this  jurisdiction  could  be 
lodged,  excepting  the  Senate;  and  the  only  alter- 
native to  this  plan  was  to  create  a special  tribunal 
for  the  sole  purpose  of  trying  impeachments  of  the 
President  and  other  officers.  This  was  justly  deemed 
a manifest  inconvenience ; and  although  there  were 


262 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


various  theoretical  objections  suggested  against  pla- 
cing the  trial  in  the  Senate,  on  the  question  being 
stated  there  were  found  to  be  but  two  dissentient 
States.1  This  point  having  been  settled,  in  relation 
to  impeachments  of  the  President,  the  trial  of  im- 
peachments of  all  other  civil  officers  of  the  United 
States  was,  for  the  sake  of  uniformity,  also  confided 
to  the  Senate.2  The  power  of  impeachment  was  con- 
fined, as  originally  proposed,  to  the  House  of  Rep- 
resentatives.3 

The  number  of  members  of  each  house  that  should 
be  made  a quorum  for  the  transaction  of  business 
gave  rise  to  a good  deal  of  difference  of  opinion. 
The  controlling  reason  why  a smaller  number  than 
a majority  of  the  members  of  each  house  should  not 
be  permitted  to  make  laws,  was  to  be  found  in  the 
extent  of  the  country  and  the  diversity  of  its  inter- 
ests. The  central  States,  it  was  said,  could  always 
have  their  members  present  with  more  convenience 
than  the  distant  States;  and  after  some  discussion, 
it  was  determined  to  establish  a majority  of  each 
house  as  its  quorum  for  the  transaction  of  business, 
giving  to  a smaller  number  power  to  adjourn  from 
day  to  day,  and  to  compel  the  attendance  of  absent 
members.4 

Provisions  making  each  house  the  judge  of  the 
elections,  returns,  and  qualifications  of  its  own  mem- 

1 Pennsylvania  and  Virginia.  see  the  Index,  verb.  Impeach- 

2 See  Elliot,  V.  507,  528,  529.  ment. 

3 As  to  the  other  provisions  of  4 Elliot,  "V.  405,  406.  Art.  I. 

the  Constitution  on  this  subject,  § 5 of  the  Constitution. 


Ch.  IX.] 


PRESIDENT  OF  THE  SENATE. 


263 


bers ; that  for  any  speech  or  debate  in  either  house 
no  member  shall  be  questioned  in  any  other  place ; 
and  that  in  all  cases,  except  treason,  felony,  or  breach 
of  the  peace,  the  members  shall  be  privileged  from 
arrest  during  their  attendance  at,  and  in  going  to 
and  returning  from,  the  sessions  of  their  respective 
houses,  — were  agreed  to  without  any  dissent.1 

The  power  of  each  house  to  determine  the  rules 
of  its  proceedings,  to  punish  its  members  for  disor- 
derly behavior,  and  to  expel  with  the  concurrence 
of  two  thirds,  was  agreed  to  with  general  assent.2 
Each  house  was  also  directed  to  keep  a journal  of 
its  proceedings,  and  from  time  to  time  to  publish 
the  same,  excepting  such  parts  as  may  in  their  judg- 
ment require  secrecy ; and  one  fifth  of  the  members 
present  in  either  house  were  empowered  to  require 
the  yeas  and  nays  to  be  entered  on  its  journal.3 

The  report  of  the  committee  of  detail  had  made 
no  provision  for  such  an  officer  as  the  Vice-Presi- 
dent of  the  United  States,  and  had  therefore  declared 
that  the  Senate,  as  well  as  the  House,  should  choose 
its  own  presiding  officer.  This  feature  of  their  re- 
port received  the  sanction  of  the  Convention;  but 
subsequently,  when  it  became  necessary  to  create 
an  officer  to  succeed  the  President  of  the  United 
States,  in  case  of  death,  resignation,  or  removal  from 
office,  the  plan  was  adopted  of  making  the  former 

1 Elliot,  V.  406.  Constitution,  3 Elliot,  Y.  407.  Constitution, 

Art.  I.  §§  5,  6.  Art.  I.  § 5. 

2 Elliot,  V.  407.  Constitution, 

Art.  I.  § 5. 


264 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ex  officio  the  presiding  officer  of  the  Senate,  giving 
him  a vote  only  in  cases  where  the  votes  of  the 
members  are  equally  divided.1  To  this  was  added 
the  further  provision,  that  the  Senate  shall  choose, 
besides  all  its  other  officers,  a President  pro  tempore , 
in  the  absence  of  the  Vice-President,  or  when  he 
shall  exercise  the  office  of  President  of  the  United 
States.2  The  House  of  Representatives  were  em- 
powered to  choose  their  own  Speaker,  and  other 
officers,  as  originally  proposed.3 

The  mode  in  which  laws  were  to  he  enacted  was 
the  last  topic  concerning  the  action  of  the  legisla- 
ture which  required  to  be  dealt  with  in  the  Consti- 
tution. The  principle  had  been  already  settled,  that 
the  negative  of  the  President  should  arrest  the  pas- 
sage of  a law,  unless,  after  he  had  refused  his  con- 
currence, it  should  be  passed  by  two  thirds  of  the 
members  of  each  house.  In  order  to  give  effect  to 
this  principle,  the  committee  of  detail  made  the  fol- 
lowing regulations,  which  were  adopted  into  the 
Constitution ; — that  every  bill,  which  shall  have 
passed  the  two  houses,  shall,  before  it  become  a law, 
be  presented  to  the  President  of  the  United  States  ; 
that,  if  he  approve,  he  shall  sign  it,  but  if  not,  he 
shall  return  it,  with  his  objections,  to  the  house  in 
which  it  originated,  who  shall  enter  the  objections  at 
lai'ge  on  their  journal,  and  proceed  to  reconsider  it ; 
that  if,  after  such  reconsideration,  two  thirds  of  that 
house  agree  to  pass  the  hill,  it  is  to  be  sent  with 

1 Elliot,  V.  507,  520.  Constitu-  2 Ibid, 
don,  Art.  I.  § 3.  3 Art.  I.  § 2. 


Ch.  IX.J 


PRESIDENT’S  NEGATIVE. 


265 


the  objections  to  the  other  house,  by  which  it  is 
likewise  to  be  reconsidered,  and,  if  approved  by  two 
thirds  of  that  house,  it  is  to  become  a law ; but  in 
all  such  cases,  the  votes  of  both  houses  are  to  be 
determined  by  yeas  and  nays  entered  upon  the 
journal.  If  any  bill  be  not  returned  by  the  Presi- 
dent within  ten  days  (Sundays  excepted)  after  it 
has  been  presented  to  him,  it  is  to  become  a law, 
in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress  by  adjourning  prevent  its  return,  in  which 
case  it  is  not  to  become  a law.  All  orders,  resolu- 
tions, and  votes  to  which  the  concurrence  of  both 
houses  is  necessary,  (except  on  a question  of  ad- 
journment,) are  subject  to  these  provisions.1 

The  two  important  differences  between  the  nega- 
tive thus  vested  in  the  President  of  the  United  States 
and  that  which  belongs  to  the  King  of  England  are, 
that  the  former  is  a qualified,  while  the  latter  is  an 
absolute,  power  to  arrest  the  passage  of  a law ; and 
that  the  one  is  required  to  render  to  the  legislature 
the  reasons  for  his  refusal  to  approve  a bill,  while 
the  latter  renders  no  reasons,  but  simply  answers 
that  he  will  advise  of  the  matter,  which  is  the  par- 
liamentary form  of  signifying  a refusal  to  approve. 
The  provision  in  our  Constitution  which  requires 
the  President  to  communicate  to  the  legislature  his 
objections  to  a bill,  was  rendered  necessary  by  the 
power  conferred  upon  two  thirds  of  both  houses 
to  make  it  a law,  notwithstanding  his  refusal  to 
sign  it.  By  this  power,  which  makes  the  negative 

1 Constitution,  Art.  I.  § 7. 

34 


VOL.  II. 


266 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  the  President  a qualified  one  only,  the  framers 
of  the  Constitution  intended  that  the  two  houses 
should  take  into  consideration  the  objections  which 
may  have  led  the  President  to  withhold  his  assent, 
and  that  his  assent  should  be  dispensed  with,  if, 
notwithstanding  those  objections,  two  thirds  of 
both  houses  should  still  approve  of  the  measure. 
These  provisions,  therefore,  on  the  one  hand, 
give  to  the  President  a real  participation  in  acts 
of  legislation,  and  impose  upon  him  a real  respon- 
sibility for  the  measures  to  which  he  gives  his 
official  approval,  while  they  give  him  an  impor- 
tant influence  over  the  final  action  of  the  legis- 
lature upon  those  which  he  refuses  to  sanction  ; 
and,  on  the  other  hand,  they  establish  a wide  dis- 
tinction between  his  negative  and  that  of  the 
King  in  England.  The  latter  has  none  but  an 
absolute  “ veto  ” ; if  he  refuse  to  sign  a bill,  it 
cannot  become  a law;  and  it  is  well  understood, 
that  it  is  on  account  of  this  absolute  effect  of  the 
refusal,  that  this  prerogative  has  been  wholly  dis- 
used since  the  reign  of  William  III.,  and  that  the 
practice  has  grown  up  of  signifying,  through  the 
ministry,  the  previous  opposition  of  the  executive, 
if  any  exists,  while  the  measure  is  under  discussion 
in  Parliament.  It  is  not  needful  to  consider  here 
which  mode  of  legislation  is  theoretically  or  practi- 
cally the  best.  It  is  sufficient  to  notice  the  fact, 
that  the  absence  from  our  system  of  official  and 
responsible  advisers  of  the  President,  having  seats 
in  the  legislature,  renders  it  impracticable  to  signify 


Ch.  IX.] 


PRESIDENT’S  NEGATIVE. 


267 


his  views  of  a measure,  while  it  is  under  the  con- 
sideration of  either  house.  For  this  reason,  and 
because  the  President  himself  is  responsible  to  the 
people  for  his  official  acts,  and  in  order  to  accom- 
pany that  responsibility  with  the  requisite  power 
both  to  act  upon  reasons  and  to  render  them,  our 
Constitution  has  vested  in  him  this  peculiar  and 


qualified  negative.1 

1 A question  has  been  made, 
■whether  it  is  competent  to  two 
thirds  of  the  members  present  in 
each  house  to  pass  a bill  notwith- 
standing the  President’s  objections, 
or  whether  the  Constitution  means 
that  it  shall  be  passed  by  two  thirds 
of  all  the  members  of  each  branch 
of  the  legislature.  The  history  of 
the  “ veto  ” in  the  Convention  seems 
to  me  to  settle  this  question.  There 
was  a change  of  phraseology,  in  the 
course  of  the  proceedings  on  this 
subject,  which  indicates  very  clearly 
a change  of  intention.  The  lan- 
guage employed  in  the  resolutions, 
in  all  the  stages  through  which  they 
passed,  was,  that  “ The  national  ex- 
ecutive shall  have  a right  to  nega- 
tive any  legislative  act,  which  shall 
not  be  afterwards  passed  by  two 
third  parts  of  each  branch  of  the 
national  legislature .”  This  was  the 
form  of  expression  contained  in  the 
resolutions  sent  to  the  committee  of 
detail ; and  if  it  had  been  incorpo- 
rated into  the  Constitution,  there 
could  have  been  no  question  but 
that  its  meaning  would  have  been, 
that  the  bill  must  be  alterwards 
passed  by  two  thirds  of  all  the 
members  to  which  each  branch  is 


constitutionally  entitled.  But  the 
committee  of  detail  changed  this 
expression,  and  employed  one  which 
has  a technical  meaning,  that  mean- 
ing being  made  technical  by  the 
Constitution  itself.  Before  the  com- 
mittee came  to  carry  out  the  reso- 
lution relating  to  the  President’s 
negative,  they  had  occasion  to 
define  what  should  constitute  a 
“ house  ” in  each  branch  of  the 
legislature ; and  they  did  so  by 
the  provision  that  a majority  of 
each  house  shall  constitute  a quo- 
rum to  do  business.  This  expres- 
sion, a “ house,”  or  “ each  house,” 
is  several  times  employed  in  the 
Constitution,  with  reference  to  the 
faculties  and  powers  of  the  two 
chambers  respectively,  and  it  al- 
ways means,  when  so  used,  the 
constitutional  quorum,  assembled 
for  the  transaction  of  business,  and 
capable  of  transacting  business. 
This  same  expression  was  em- 
ployed by  the  committee  when 
they  provided  for  the  mode  in 
which  a bill,  once  rejected  by  the 
President,  should  be  again  brought 
before  the  legislative  bodies.  They 
directed  it  to  be  returned  “ to  that 
house  in  which  it  shall  have  origi - 


268 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  remaining  topic  that  demands  our  inquiries, 
respecting  the  legislature,  relates  to  the  place  of  its 
meeting.  The  Confederation  was  a government 
without  a capitol,  or  a seat ; a want  which  seriously 
impaired  its  dignity  and  its  efficiency,  and  subjected 
it  to  great  inconveniences ; at  the  same  time,  it  was 
unable  to  supply  the  defect.  Its  Congress,  follow- 
ing the  example  of  their  predecessors,  had  continued 
to  assemble  at  Philadelphia,  until  June,  1783;  when, 
as  we  have  already  seen,  in  consequence  of  a mutiny 
by  some  of  the  federal  troops  stationed  in  that  neigh- 


nated,”  — that  is  to  say,  to  a con- 
stitutional quorum,  a majority  of 
which  passed  it  in  the  first  in- 
stance ; and  they  then  provided, 
that,  if  “ two  thirds  of  that  house 
shall  agree  to  pass  the  bill,  it  shall 
be  sent,  together  with  the  objec- 
tions, to  the  other  house, 

and  if  approved  by  two  thirds  of 
that  house,  it  shall  become  a 
law.”  This  change  of  phraseology, 
taken  in  connection  with  the  obvi- 
ous meaning  of  the  term  “ house,” 
as  used  in  the  Constitution  when  it 
speaks  of  a chamber  competent  to 
do  business,  shows  the  intention 
very  clearly.  It  is  a very  different 
provision  from  what  would  have 
existed,  if  the  phrase  “ two  third 
parts  of  each  branch  of  the  nation- 
al legislature”  had  been  retained. 
(See  Elliot,  V.  349,  376,  378,  431 
536.) 

This  view  will  be  sustained  by  an 
examination  of  all  the  instances  in 
which  the  votes  of  “ two  thirds  ” in 
either  body  are  required.  Thus, 
“ each  house  may  determine  the 


rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two 
thirds,  expel  a member.”  (Art.  I. 
§ 5.)  The  context  of  the  same 
article  defines  what  is  to  consti- 
tute a “house,”  and  makes  it 
clear  that  two  thirds  of  a “ house  ” 
may  expel.  That  this  was  the  in- 
tention is  also  clear  from  what  took 
place  in  the  Convention.  Mr.  Mad- 
ison objected  to  the  provision  as  it 
stood  on  the  report  of  the  com- 
mittee, by  which  a mere  majority 
of  a quorum  was  empowered  to 
expel,  and,  on  his  motion,  the 
words  “ with  the  concurrence  of 
two  thirds”  were  inserted.  (El- 
liot, V.  406,  407.)  In  like  man- 
ner, the  fifth  Article  of  the  Consti- 
tution empowers  Congress,  “ when- 
ever two  thirds  of  both  houses 
shall  deem  it  necessary,”  to  propose 
amendments  to  the  Constitution. 
The  term  “ house  ” is  here  used 
as  synonymous  with  a quorum. 

It  has  been  suggested,  however, 
that  the  use  of  a positive  expres- 


Ch.  IX.] 


SEAT  OF  GOVERNMENT. 


269 


borhood,  against  which  the  local  authorities  failed 
to  protect  them,  they  left  that  city,  and  reassembled 
at  Princeton,  in  the  State  of  New  Jersey,  in  the 
halls  of  a college.1  There,  in  the  following  October, 
a resolution  was  passed,  directing  that  buildings  for 
the  use  of  Congress  should  be  erected  at  some  suit- 
able place  near  the  falls  of  the  Delaware ; for  which 
the  right  of  soil  and  an  exclusive  jurisdiction  should 
be  obtained.2  But  this  was  entirely  unsatisfactory 
to  the  Southern  States.  They  complained  that  the 
place  selected  was  not  central,  was  unfavorable  to 


sion,  in  relation  to  the  action  of 
the  Senate  upon  treaties,  throws 
some  doubt  upon  the  meaning  of 
the  term  “ two  thirds,”  as  used  in 
other  parts  of  the  Constitution.  A 
treaty  requires  the  concurrence  of 
“two  thirds  of  the  senators  pres- 
ent"; and  it  has  been  argued  that 
the  omission  of  this  term  in  the 
other  cases  shows  that  two  thirds 
of  all  the  members  are  required 
in  those  cases.  But  it  is  to  be 
remembered,  that  the  Constitution 
makes  a general  provision  as  to 
what  shall  constitute  a house  for 
the  transaction  of  business  ; that 
when  it  means  that  a particular 
function  shall  not  be  performed 
by  such  a house,  or  quorum,  it 
establishes  the  exception  by  a par- 
ticular provision,  as  when  it  re- 
quires two  thirds  of  all  the  States 
to  be  present  in  the  House  of 
Representatives  on  the  choice  of 
a President,  and  makes  a majority 
of  all  the  States  necessary  to  a 
choice  ; and  that  whether  the  func- 
tion of  the  Senate  in  approving 


treaties  is  or  is  not  a part  of  the 
business  which  under  the  general 
provision  is  required  to  be  done  in 
a “ house  ” or  quorum  consisting 
of  a majority  of  all  the  members, 
the  Constitution  does  not  speak  of 
this  function  as  being  done  by  a 
“ house,”  but  it  speaks  of  the  “ ad- 
vice and  consent  of  the  Senate ,”  to 
be  given  “ by  two  thirds  of  the 
senators  present.”  The  use  of 
the  term  “ present  ” was  necessary, 
therefore,  in  this  connection,  be- 
cause no  term  had  preceded  it 
which  would  guide  the  construc- 
tion to  the  conclusion  intended ; 
but  in  the  other  cases,  the  previous 
use  of  the  term  “ house,”  defined 
to  be  a majority  of  all  the  members,' 
determines  the  sense  in  which  the 
term  “ two  thirds  ” is  to  be  under- 
stood, and  makes  it,  as  I humbly 
conceive,  two  thirds  of  a constitu- 
tional quorum. 

1 Ante,  Vol.  I.  220,  note,  22G, 
note. 

2 October  6,1783,  Journals, VIII. 
423. 


270  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

the  Union,  and  unjust  to  them.  They  endeavored 
to  procure  a reconsideration  of  the  vote,  but  without 
success.1  Several  days  were  then  consumed  in  fruit- 
less efforts  to  agree  on  a temporary  residence ; and 
at  length  it  became  apparent  that  there  was  no  pros- 
pect of  a general  assent  to  any  one  place,  either  for 
a temporary  or  for  a permanent  seat.  The  plan  of  a 
single  residence  was  then  changed,  and  a resolution 
was  passed,  providing  for  an  alternate  residence  at 
two  places,  by  directing  that  buildings  for  the  use  of 
Congress,  and  a federal  town,  should  also  be  erected 
at  or  near  the  lower  falls  of  the  Potomac,  or  George- 
town ; and  that  until  both  places,  that  on  the  Dela- 
ware and  that  on  the  Potomac,  were  ready  for  their 
reception,  Congress  should  sit  alternately,  for  equal 
periods  of  not  more  than  one  year  and  not  less  than 
six  months,  at  Trenton,  the  capital  of  the  State  of 
New  Jersey,  and  at  Annapolis,  the  capital  of  the 
State  of  Maryland.  The  President  was  thereupon 
directed  to  adjourn  the  Congress,  on  the  12th  of  the 
following  November,  to  meet  at  Annapolis  on  the 
26th,  for  the  despatch  of  business.  Thither  they 
accordingly  repaired,  and  there  they  continued  to 
sit  until  June  3,  1784.  A recess  followed,  during 
which  a committee  of  the  States  sat,  until  Congress 
reassembled  at  Trenton,  on  the  30th  of  the  following 
October. 

At  Trenton,  the  accommodations  appear  to  have 
been  altogether  insufficient,  and  the  States  of  South 
Carolina  and  Pennsylvania  proposed  to  adjourn  from 


1 October  8.  Ibid.  424,  425. 


Ch.  IX.] 


SEAT  OF  GOVERNMENT. 


271 


that  place.1  The  plan  of  two  capitols  in  different 
places  was  then  rescinded,2  and  an  ordinance  was 
passed,  for  the  appointment  of  commissioners  to  es- 
tablish a seat  of  government  on  the  banks  of  the 
Delaware,  at  some  point  within  eight  miles  above 
or  below  the  lower  falls  of  that  river.  Until  the 
necessary  buildings  should  be  ready  for  their  recep- 
tion, the  ordinance  provided  that  Congress  should 
sit  at  the  city  of  New  York.3  When  assembled 
there  in  January,  1785,  they  received  and  accept- 
ed from  the  corporation  an  offer  of  the  use  of  the 
City  Hall ; and  in  that  building  they  continued  to 
hold  their  sessions  until  after  the  adoption  of  the 
Constitution.4 

It  does  not  appear  that  any  steps  were  taken 
under  the  ordinance  of  1784,  or  under  any  of  the 
previous  resolutions,  for  the  establishment  of  a fed- 
eral town  and  a seat  of  government  at  any  of  the 
places  designated.  Whether  the  Congress  felt  the 
want  of  constitutional  power  to  carry  out  their  pro- 
ject, or  whether  the  want  of  means,  or  a difficulty  in 
obtaining  a suitable  grant  of  the  soil  and  jurisdiction, 
was  the  real  impediment,  there  are  now  no  means 
of  determining.  It  seems  quite  probable,  however, 
that,  after  their  removal  to  the  city  of  New  York, 
they  found  themselves  much  better  placed  than  they 
or  their  predecessors  had  ever  been  elsewhere ; and 

1 December  10, 11, 1784.  Jour-  4 They  removed  from  it  October 

nals,  X.  16  - 18.  2,  1788,  on  a notice  from  the  May- 

2 December  20,  21.  Ibid.  23,  24.  or  of  the  city  'that  repairs  were  to 

3 Passed  December  23.  Ibid.  29.  be  made. 


272 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


as  the  discussions  respecting  a total  revision  of  the 
federal  system  soon  afterwards  began  to  agitate  the 
public  mind,  the  plan  of  establishing  a seat  for  the 
accommodation  of  the  old  government  was  naturally 
postponed. 

The  plan  itself,  on  paper,  was  a bold  and  magnifi- 
cent one.  It  contemplated  a district  not  less  than 
two  and  not  more  than  three  miles  square,  with  a 
“ federal  house  ” for  the  use  of  Congress ; suitable 
buildings  for  the  executive  departments ; official 
residences  for  the  president  and  secretary  of  Con- 
gress, and  the  secretaries  of  foreign  affairs,  of  war, 
of  the  marine,  and  the  officers  of  the  treasury ; be- 
sides hotels  to  be  erected  and  owned  by  the  States 
as  residences  for  their  delegates.  But,  for  this  fine 
scheme  of  a federal  metropolis,  an  appropriation  was 
made,  which,  even  in  those  days,  one  might  suppose, 
would  scarcely  have  paid  for  the  land  required.  The 
commissioners  who  were  to  purchase  the  site,  lay 
out  the  town,  and  contract  for  the  erection  and  com- 
pletion of  all  the  public  edifices,  — excepting  those 
which  were  to  belong  to  the  States,  — “ in  an  ele- 
gant manner,”  were  authorized  to  draw  on  the  fed- 
eral treasury  for  a sum  not  exceeding  one  hundred 
thousand  dollars,  for  the  whole  of  these  purposes. 
If  we  are  to  understand  it  to  have  been  really  ex- 
pected and  intended  that  this  sum  should  defray  the 
cost  of  this  undertaking,  we  must  either  be  amused 
by  the  modest  requirements  of  the  Union  at  that 
day,  or  stand  amazed  at  the  strides  it  has  since 
taken  in  its  onward  career  of  prosperity  and  power. 


Ch.  IX.] 


SEAT  OF  GOVERNMENT. 


273 


From  the  porticos  of  that  magnificent  Capitol  whose 
domes  overhang  the  Potomac,  the  eye  now  looks 
down  upon  a city,  in  which,  at  a cost  of  many  mil- 
lions, provision  has  been  made  for  the  central  func- 
tions of  a government,  whose  daily  expenditure 
exceeds  the  entire  sum  appropriated  for  the  estab- 
lishment of  the  necessary  public  buildings  and  offi- 
cial residences  seventy  years  ago. 

In  truth,  however,  there  is  not  much  reason  to 
suppose  that  the  Congress  of  the  Confederation  se- 
riously contemplated  the  establishment  of  a federal 
city.  They  were  too  feeble  for  such  an  undertaking. 
They  could  pass  resolutions  and  ordinances  for  the 
purpose,  and  send  them  to  the  authorities  of  the 
States ; — and  if  a more  decent  attention  to  the  wants 
and  dignity  of  the  federal  body  was  excited,  it  was 
well,  and  was  probably  the  effect  principally  in- 
tended. If  they  had  actually  proceeded  to  do  what 
their  resolution  of  1783  proposed,  — to  acquire  the 
jurisdiction,  as  well  as  the  right  of  soil,  over  a tract 
of  land,  — they  must  have  encountered  a serious 
obstacle  in  the  want  of  constitutional  power.  This 
difficulty  seems  to  have  been  felt  at  a later  period ; 
for  the  ordinance  of  1784  only  directs  a purchase  of 
the  land,  and  is  silent  upon  the  subject  of  municipal 
jurisdiction.  It  is  fortunate,  too,  on  all  accounts,  that 
the  design  was  never  executed,  if  it  was  seriously  en- 
tertained. The  presence  of  Congress  in  the  city  of 
New  York,  where  the  legislature  of  the  State  was.  also 
sitting,  in  the  winter  of  1787,  enabled  Hamilton  to* 
carry  those  measures  in  both  bodies,  which,  led  im- 

35 


YOL.  II. 


274 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


mediately  to  the  summoning  of  the  national  Conven- 
tion.1 And  it  was  especially  fortunate  that  this 
whole  subject  came  before  the  Convention  unem- 
barrassed with  a previous  choice  of  place  by  the  old 
Congress,  or  with  any  steps  concerning  municipal 
jurisdiction  which  they  might  have  taken,  or  omit- 
ted. 

For  it  was  no  easy  matter,  in  the  temper  of  the 
public  mind  existing  from  1783  to  1788,  to  deter- 
mine where  the  seat  of  the  federal,  or  that  of  the 
national  government,  ought  to  be  placed.  The  Con- 
vention found  this  an  unsettled  question,  and  they 
wisely  determined  to  leave  it  so.  The  cities  of  New 
York  and  Philadelphia  had  wishes  and  expecta- 
tions, and  it  was  quite  expedient  that  the  Constitu- 
tion should  neither  decide  between  them,  nor  decide 
against  both  of  them.  It  was  equally  important  that 
it  should  not  direct  whether  the  seat  of  the  national 
government  should  be  placed  at  any  of  the  other 
commercial  cities,  or  at  the  capital  or  within  the  ju- 
risdiction of  any  State,  or  in  a district  to  be  exclu- 
sively under  the  jurisdiction  of  the  United  States. 
These  were  grave  questions,  which  involved  the 
general  interests  of  the  Union ; but  however  settled, 
they  would  cost  the  Constitution,  in  some  quarter 
or  other,  a great  deal  of  the  support  that  it  required, 
if  determined  before  it  went  into  operation.2  Tem- 
porarily, however,  the  new  government  must  be 
placed  somewhere  within  the  limits  of  a State,  and 

1 See  ante , Vol.  I.  pp.  358-  2 Seethe  conversation  reported 

361.  by  Madison,  Elliot,  V.  374. 


Ch.  IX.] 


SEAT  OF  GOVEKNMENT. 


275 


at  one  of  the  principal  cities ; and  as  the  Congress 
then  sitting  at  New  York  would  probably  invite 
their  successors  to  assemble  there,  it  became  neces- 
sary to  provide  for  a future  removal,  when  the  time 
should  arrive  for  a general  agreement  on  the  various 
and  delicate  questions  involved.  The  difference  of 
structure,  however,  between  the  two  branches  of  the 
proposed  Congress,  and  the  difference  of  interests 
that  might  predominate  in  each,  made  a disagree- 
ment on  these  questions  probable,  if  not  inevitable; 
and  a disagreement  on  the  place  of  their  future 
sessions,  if  accompanied  by  power  to  sit  in  separate 
places,  would  be  fatal  to  the  peace  of  the  Union  and 
the  operation  of  the  government. 

The  committee  of  detail,  therefore,  inserted  in 
their  draft  a clause  prohibiting  either  house,  with- 
out the  consent  of  the  other,  from  adjourning  for 
more  than  three  days,  or  to  any  other  place  than 
that  at  which  the  Congress  might  be  sitting.  Mr. 
King  expressed  an  apprehension  that  this  implied 
an  authority  in  both  houses  to  adjourn  to  any  place; 
and  as  a frequent  change  of  place  had  dishonored 
the  federal  government,  he  thought  that  a law,  at 
least,  should  be  made  necessary  for  a removal.  Mr. 
Madison  considered  a central  position  would  be  so 
necessary,  and  that  it  would  be  so  strongly  de- 
manded by  the  House  of  Representatives,  that  a 
removal  from  the  place  of  their  first  session  would 
be  extorted,  even  if  a law  were  required  for  it.  But 
there  was  a fear  that,  if  the  government  were  once 
established  at  the  city  of  New  York,  it  would  never 


276 


FOEMATION  OF  THE  CONSTITUTION.  [Book  IV. 


be  removed  if  a law  were  made  necessary.  The  pro- 
vision reported  by  the  committee  was  therefore  re- 
tained, and  it  was  left  in  the  power  of  the  two  houses 
alone,  during  a session  of  Congress,  to  adjourn  to 
any  place,  or  to  any  time,  on  which  they  might 
agree.1 

Still  it  was  needful  that  the  Constitution  should 
empower  the  legislature  to  establish  a seat  of  gov- 
ernment out  of  the  jurisdiction  of  any  of  the  States, 
and  away  from  any  of  their  cities.  The  time  might 
come  when  this  question  could  be  satisfactorily  met. 
The  time  would  certainly  come,  when  the  people  of 
the  whole  Union  could  see  that  the  dignity,  the  in- 
dependence, and  the  purity  of  the  government  would 
require  that  it  should  be  under  no  local  influences ; 
when  every  citizen  of  the  United  States,  called  to 
take  part  in  the  functions  of  that  government,  ought 
to  be  able  to  feel  that  he  and  his  would  owe  their 
protection  to  no  power,  save  that  of  the  Union  itself. 
Some  disadvantage,  doubtless,  might  be  experienced, 
in  placing  the  government  away  from  the  great 
centres  of  commerce.  But  neither  of  the  principal 
seats  of  wealth  and  refinement  was  very  near  to  the 
centre  of  the  Union ; and  if  either  of  them  had  been, 
the  necessity  for  an  exclusive  local  jurisdiction  would 
probably  be  found,  after  the  adoption  of  the  Consti- 
tution, to  outweigh  all  other  considerations.  Ac- 
cordingly, when  the  Constitution  was  revised  for  the 
purpose  of  supplying  the  needful  provisions  omitted 

1 Elliot,  V.  409,  410.  See  ident  to  assemble  and  adjourn 
post,  as  to  the  power  of  the  Pres-  Congress. 


Ch.  IX.] 


SESSION  OF  CONGRESS. 


277 


in  its  preparation,  it  was  determined  tliat  no  peremp- 
tory direction  on  the  subject  of  a seat  of  government 
should  be  given  to  the  legislature;  but  that  power 
should  be  conferred  on  Congress  to  exercise  an  ex- 
clusive legislation,  in  all  cases,  over  such  district,  not 
exceeding  ten  miles  square,  as  might,  by  cession  of 
particular  States  and  the  acceptance  of  Congress,  be- 
come the  seat  of  government  of  the  United  States. 
This  provision  has  made  the  Congress  of  the  United 
States  the  exclusive  sovereign  of  the  District  of  Co- 
lumbia, which  it  governs  in  its  capacity  of  the  legis- 
lature of  the  Union.  It  enabled  Washington  to 
found  the  city  which  bears  his  name ; towards  which, 
whatever  may  be  the  claims  of  local  attachment, 
every  American  who  can  discern  the  connection  be- 
tween the  honor,  the  renown,  and  the  welfare  of 
his  country,  and  the  dignity,  convenience,  and  safety 
of  its  government,  must  turn  with  affection  and 
pride. 

With  respect  to  a regular  time  of  meeting,  no  in- 
structions had  been  given  to  the  committee  of  detail ; 
but  they  inserted  in  their  draft  of  the  Constitution  a 
clause  which  required  the  legislature  to  assemble  on 
the  first  Monday  of  December  in  every  year.  There 
was,  however,  a great  difference  of  opinion  as  to  the 
expediency  of  designating  any  time  in  the  Constitu- 
tion, and  as  to  the  particular  period  adopted  in  the 
report.  But  as  it  was  generally  agreed  that  Congress 
ought  to  assemble  annually,  the  provision  which  now 
stands  in  the  Constitution,  Avhich  requires  annual 
sessions,  and  establishes  the  first  Monday  in  Decern- 


278 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ber  as  the  time  of  their  commencement,  unless  a dif- 
ferent day  shall  be  appointed  by  law,  was  adopted  as 
a compromise  of  different  views.1 


1 Mr.  Justice  Story  has  stated  in 
his  Commentaries  (§  829),  that  this 
clause  came  into  the  Constitution 
in  the  revised  draft,  near  the  close 
of  the  Convention,  and  was  silently 
adopted,  without  opposition.  This 


is  a mistake.  The  clause  was  con- 
tained in  the  draft  of  the  committee 
of  detail,  and  was  modified  as  stated 
in  the  text,  on  the  7th  of  August, 
after  a full  debate.  Elliot,  V.  377, 
383-385. 


CHAPTER  X. 


Report  of  the  Committee  of  Detail,  continued.  — The  Pow- 
ers of  Congress.  — The  Grand  Compromises  of  the  Con- 
stitution respecting  Commerce,  Exports,  and  the  Slave- 
Trade. 

In  the  examination  which  has  thus  far  been  made 
of  the  process  of  forming  the  Constitution,  the  reader 
will  have  noticed  the  absence  of  any  express  pro- 
visions concerning  the  regulation  of  commerce,  and 
the  obtaining  of  revenues.  A system  of  government 
had  been  framed,  embracing  a national  legislature,  in 
which  the  mode  of  representation  alone  had  been  de- 
termined with  precision.  The  powers  of  this  legis- 
lature had  been  described  only  in  very  general  terms. 
It  was  to  have  “ the  legislative  rights  vested  in  Con- 
gress by  the  Confederation,”  and  the  power  “ to 
legislate  in  all  cases  for  the  general  interests  of  the 
Union,  and  also  in  those  to  which  the  States  were 
separately  incompetent,  or  in  which  the  harmony  of 
the  United  States  may  be  interrupted  by  the  exercise 
of  individual  legislation.” 

It  might  undoubtedly  have  been  considered  that, 
as  the  want  of  a power  in  the  Confederation  to  make 
uniform  commercial  regulations  affecting  the  foreign 


280 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and  domestic  relations  of  the  States  was  one  of  the 
principal  causes  of  the  assembling  of  this  Convention, 
such  a power  was  implied  in  the  terms  of  the  resolu- 
tion, which  had  declared  the  general  principles  on 
which  the  authority  of  the  national  legislature  ought 
to  be  regulated.  Still,  it  remained  to  1m  determined 
what  kind  of  regulation  of  commerce  was  required 
by  “ the  general  interests  of  the  Union,”  or  how  far 
the  States  were  incompetent,  by  their  separate  legis- 
lation, to  deal  with  the  interests  of  commerce  so  as 
to  promote  “ the  harmony  of  the  United  States.”  In 
the  same  way,  a power  to  obtain  revenues  might  be 
implied  on  the  same  general  principles.  But  whether 
the  commercial  power  foreshadowed  in  these  broad 
declarations  was  to  be  limited  or  unlimited ; whether 
there  were  any  special  objects  or  interests  to  which 
it  was  not  to  extend ; and  whether  the  revenues  of 
the  government  were  to  be  derived  from  imposts 
laid  at  pleasure  upon  imports  or  exports,  or  both; 
whether  they  might  be  derived  from  excises  on  the 
manufactures  or  produce  of  the  country ; whether 
its  power  of  direct  taxation  was  to  be  exercised 
under  further  limitations  than  those  already  agreed 
upon  for  the  apportionment  of  direct  taxes  among 
the  States ; — all  these  details  were  as  yet  entirely 
unsettled. 

Two  subjects,  one  of  which  might  fall  within  a 
general  commercial  power,  and  the  other  within  a 
general  power  to  raise  revenues,  had  already  been 
incidentally  alluded  to,  and  both  were  likely  to 
create  great  embarrassment.  General  Pinckney  had 


Ch.  X.] 


EXPORTS  AND  THE  SLAVE-TRADE. 


281 


twice  given  notice  tliat  South  Carolina  could  not 
accede  to  the  new  Union  proposed,  if  it  possessed  a 
power  to  tax  exports.1  It  had  also  become  apparent, 
in  the  discussions  and  arrangements  respecting  the 
apportionment  of  representatives,  that  the  possible 
encouragement  of  the  slave-trade,  which  might  fol- 
low an  admission  of  the  blacks  into  the  rule  of 
representation,  was  one  great  obstacle,  in  the  view 
of  the  Northern  States,  to  such  an  admission ; and 
at  the  same  time,  that  it  was  very  doubtful  whether 
all  the  Southern  States  would  surrender  to  the  gen- 
eral government  the  power  to  prohibit  that  trade.2 
The  compromise  which  had  already  taken  place  on 
the  subject  of  representation  had  settled  the  prin- 
ciples on  which  that  difficult  matter  was  to  be 
arranged.  But  the  power  to  increase  the  slave 
populations  by  continued  importation  had  not  been 
agreed  to  be  surrendered  ; and  unless  some  satis- 
factory and  reasonable  adjustment  could  be  made 
on  this  subject,  there  could  be  no  probability  that 
the  Constitution  would  be  finally  ratified  by  the 
people  of  the  Northern  States.3  It  is  necessary, 
therefore,  to  look  carefully  at  these  two  subjects, 


1 See  Madison,  Elliot,  V.  302, 
357. 

2 See  the  remarks  of  Gouver- 

neur  Morris  in  the  debate  on  the 
apportionment  of  representatives, 
In  which  he  stated  the  dilemma 
precisely  in  this  way.  Elliot,  V. 
301.  g 

3 No  candid  man,  said  Rufus 
King,  could  undertake  to  justify 

VOL.  II.  36 


to  them  a system  under  which 
slaves  were  to  continue  to  be  im- 
ported, and  to  be  represented, 
while  the ' exports  produced  by 
their  labor  were  not  to  pay  any 
part  of  the  expenses  of  the  gov- 
ernment which  would  be  obliged 
to  defend  their  masters  against 
domestic  insurrections  or  foreign 
attacks.  Elliot,  V.  391. 


282 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


namely,  the  taxation  of  exports  and  the  prohi- 
bition of  the  slave-trade. 

That  a power  to  lay  taxes  or  duties  on  exported 
products  belongs  to  every  government  possessing  a 
general  authority  to  select  the  objects  from  which 
its  revenues  are  to  be  derived,  is  a proposition  which 
admits  of  little  doubt.  It  is  not  to  be  doubted,  either, 
that  it  is  a power  which  may  be  attended  with  great 
benefit,  not  only  for  purposes  of  revenue,  but  for  the 
encouragement  of  manufactures ; and  it  is  clear  that 
it  may  often  be  used  as  a means  of  controlling  the 
commercial  policy  of  other  countries,  when  applied 
to  articles  which  they  cannot  produce,  but  which 
they  must  consume.  A government  that  is  destitute 
of  this  power  is  not  armed  with  the  most  complete 
and  effectual  means  for  counteracting  the  regulations 
of  foreign  countries  that  bear  heavily  upon  the  in- 
dustrial pursuits  of  its  people,  although  it  may  have 
other  and  sufficient  sources  of  revenue ; and  there- 
fore, until  an  unrestricted  commercial  intercourse 
and  a free  exchange  of  commodities  become  the 
general  policy  of  the  world,  to  deny  to  any  gov- 
ernment a power  over  the  exported  products  of  its 
own  country,  is  to  place  it  at  some  disadvantage 
with  all  commercial  nations  that  possess  the  power 
to  enhance  the  price  of  commodities  which  they 
themselves  produce. 

But,  on  the  other  hand,  the  practice  of  taxing  the 
products  of  a country,  as  they  pass  out  of  its  limits 
to  enter  into  the  consumption  of  other  nations,  can 
be  beneficially  exercised  only  by  a government  that 


Ch.  X.] 


EXPORTS. 


283 


can  select  and  arrange  the  objects  of  such  taxation 
so  as  to  do  nearly  equal  justice  to  all  its  producing 
interests.  If,  for  example,  the  article  of  wine  were 
produced  only  by  a single  province  of  France,  and 
all  the  other  provinces  produced  no  commodities 
sought  for  by  other  nations,  an  export  duty  upon 
wine  would  fall  wholly  upon  the  single  province 
where  it  was  produced,  and  would  place  its  pro- 
duction at  an  unequal  competition  with  the  wines 
of  other  countries.  But  France  produces  a variety 
of  wines,  the  growth  of  many  different  provinces ; 
and  therefore,  in  the  adjustment  of  an  export  duty 
upon  wines,  the  government  of  that  country,  after 
a due  regard  to  the  demand  for  each  kind  or  class 
of  this  commodity,  has  chiefly  to  consider  the  effect 
of  such  a tax  in  the  competition  with  the  same  com- 
modity produced  by  other  nations. 

At  the  time  of  the  formation  of  the  Constitution 
of  the  United  States,  there  was  not  a single  produc- 
tion, common  to  all  the  States,  of  sufficient  impor- 
tance to  become  an  article  of  general  exportation. 
Indeed;  there  were  no  commodities  produced  for 
exportation  by  so  many  of  the  States,  that  a tax 
or  duty  imposed  upon  them  on  leaving  the  country 
would  operate  with  anything  like  equality  even  in 
different  sections  of  the  Union.  In  fact,  from  the 
extreme  northern  to  the  extreme  southern  boun- 
dary of  the  Union,  the  exports  were  so  various, 
both  in  kind  and  amount,  that  a tax  imposed  on 
an  article  the  produce  of  the  South  could  not  be 
balanced  by  a tax  imposed  upon  an  article  pro- 


284 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ducea  or  manufactured  at  the  North.  How,  for  ex- 
ample, could  the  burden  of  an  export  duty  on  the 
tobacco  of  Virginia,  or  the  rice  or  indigo  of  South 
Carolina,  be  equalized  by  a similar  duty  on  the  lum- 
ber or  fish  or  flour  of  other  States  ? Possibly,  after 
long  experience  and  the  accumulation  of  the  neces- 
sary statistics,  an  approach  towards  an  equality  of 
such  burdens  might  have  been  made ; but  it  could 
never  have  become  more  than  an  unsatisfactory  ap- 
proximation; and  while  the  effect  of  such  a tax  at 
one  end  of  the  Union  on  the  demand  for  the  com- 
modity subjected  to  it  might  be  estimated,  — because 
the  opportunity  for  other  nations  to  supply  them- 
selves elsewhere  might  be  so  precise  as  to  be  easily 
measured,  — its  effect  at  the  other  end  of  the  Union, 
on  another  commodity,  might  be  wholly  uncertain, 
because  the  demand  from  abroad  might  be  influenced 
by  new  sources  of  supply,  or  might  from  accidental 
causes  continue  to  be  nearly  the  same  as  before. 

However  theoretically  correct  it  might  have  been, 
therefore,  to  confer  on  the  general  government  the 
same  authority  to  tax  exports  as  to  impose  duties  on 
imported  commodities,  — and  the  argument  for  it 
drawn  from  the  necessities  for  revenue  and  protection 
of  manufactures  was  exceedingly  strong, — the  actual 
situation  of  the  country  made  it  quite  impracticable 
to  obtain  the  consent  of  some  of  the  States  to  a full 
and  complete  revenue  power  Several  of  the  most 
important  persons  in  the  Convention  were  strongly 
in  favor  of  it.  Washington,  Madison,  Wilson,  Gou- 
verneur  Morris,  and  Dickinson  are  known  to  have 


Ch.  X.] 


SLAVE-TRADE. 


285 


held  the  opinion,  that  the  government  would  be  in- 
complete, without  a power  to  tax  exports  as  well  as 
imports.  But  the  decided  stand  taken  by  South 
Carolina,  whose  exports  for  a single  year  were  said 
by  General  Pinckney  to  have  amounted  to  £ 600,000, 
the  fruit  of  the  labor  of  her  slaves,  probably  led  the 
committee  of  detail  to  insert  in  their  report  of  a draft 
of  the  Constitution  a distinct  prohibition  against 
laying  any  tax  or  duty  on  articles  exported  from  any 
State. 

A similar  question,  in  relation  to  the  extent  of  the 
commercial  power,  was  destined  to  arise  out  of  the 
relations  of  the  different  States  to  the  slave-trade. 
If  the  power  to  regulate  commerce,  that  might  be 
conferred  upon  the  general  government,  was  to  be 
universal  and  unlimited,  it  must  include  the  right 
to  prohibit  the  importation  of  slaves.  If  the  right 
to  sanction  or  tolerate  the  importation  of  slaves, 
which,  like  all  other  political  rights,  belonged  to 
the  people  of  the  several  States  as  sovereign  com- 
munities, was  to  be  retained  by  them  as  an  excep- 
tion from  the  commercial  power  which  they  might 
confer  upon  the  national  legislature,  that  exception 
must  be  clearly  and  definitely  established.  For  sev- 
eral reasons,  the  question  was  necessarily  to  be  met, 
as  soon  as  the  character  and  extent  of  the  commer- 
cial power  should  come  into  discussion.  While  the 
trade  had  been  prohibited  by  all  the  other  States, 
including  Virginia  and  Maryland,  it  had  only  been 
subjected  to  a duty  by  North  Carolina,  and  was 
subjected  to  a similar  discouragement  by  South 


286 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


Carolina  and  Georgia.  The  basis  of  representation 
in  the  national  legislature,  in  which  it  had  been 
agreed  that  the  slaves  should  be  included  in  a cer- 
tain ratio,  created  a strong  political  motive  with  the 
Northern  States  to  obtain  for  the  general  govern- 
ment a power  to  prevent  further  importations.  It 
was  fortunate  that  this  motive  existed ; for  the 
honor  and  reputation  of  the  country  were  concerned 
to  put  an  end  to  this  traffic.  No  other  nation,  it 
was  true,  had  at  that  time  abolished  it;  but  here 
were  the  assembled  States  of  America,  engaged  in 
framing  a Constitution  of  government,  that  ought, 
if  the  American  character  was  to  be  consistent  with 
the  principles  of  the  American  Revolution,  to  go  as 
far  in  the  recognition  of  human  rights  as  the  cir- 
cumstances of  their  actual  situation  would  admit. 
What  was  practicable  to  be  done,  from  considera- 
tions of  humanity,  and  all  that  could  be  successfully 
done,  was  the  measure  of  their  duty  as  statesmen, 
admitted  and  acted  upon  by  the  framers  of  the  Con- 
stitution, including  many  of  those  who  represented 
slaveholding  constituencies,  as  well  as  the  repre- 
sentatives of  States  that  had  either  abolished  both 
the  traffic  in  slaves  and  the  institution  itself,  or 
were  obviously  destined  to  do  it. 

This  just  and  necessary  rule  of  action,  however, 
which  limited  their  efforts  to  what  the  actual  cir- 
cumstances of  the  country  would  permit,  made  a 
clear  distinction  between  a prohibition  of  the  future 
importation  of  slaves,  and  the  manumission  of  those 
already  in  the  country.  The  former  could  be  ac- 


Ch.  X.j 


SLAVE-TRADE. 


287 


complished,  if  the  consent  of  the  people  of  the  States 
could  be  obtained,  without  trenching  on  their  sover- 
eign control  over  the  condition  of  all  persons  within 
their  respective  limits.  It  involved  only  the  surren- 
der of  a right  to  add  to  the  numbers  of  their  slaves 
by  continued  importations.  But  the  power  to  deter- 
mine whether  the  slaves  then  within  their  limits 
should  remain  in  that  condition,  could  not  be  sur- 
rendered by  the  people  of  the  States,  without  over- 
turning every  principle  on  which  the  system  of  the 
new  government  had  been  rested,  and  which  had 
thus  far  been  justly  regarded  as  essential  to  its  es- 
tablishment and  to  its  future  successful  operation. 

It  is  not,  therefore,  to  be  inferred,  because  a large 
majority  of  the  Convention  sought  for  a power  to 
prohibit  the  increase  of  slaves  by  further  importation, 
that  they  intended  by  means  of  it  to  extinguish  the 
institution  of  slavery  within  the  States.  So  far  as 
they  acted  from  a political  motive,  they  designed  to 
take  away  the  power  of  a State  to  increase  its  con- 
gressional representation  by  bringing  slaves  from 
Africa;  and  so  far  as  they  acted  from  motives  of 
general  justice  and  humanity,  they  designed  to  ter- 
minate a traffic  which  never  has  been  and  never  can 
be  carried  on  without  infinite  cruelty  and  national 
dishonor.  That  the  individuals  of  an  inferior  race 
already  placed  in  the  condition  of  servitude  to  a 
superior  one  may,  by  the  force  of  necessity,  be  right- 
fully left  in  the  care  and  dominion  of  those  on  whom 
they  have  been  cast,  is  a proposition  of  morals  en- 
tirely fit  to  be  admitted  by  a Christian  statesman. 


288 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


That  new  individuals  may  rightfully  be  placed  in  the 
same  condition,  not  by  the  act  of  Providence  through 
the  natural  increase  of  the  species,  but  by  the  act  of 
man  in  transferring  them  from  distant  lands,  is  quite 
another  proposition.  The  distinction  between  the 
two,  so  far  as  a moral  judgment  is  concerned  with 
the  acts  of  the  framers  of  the  Constitution  upon  the 
circumstances  before  them,  defines  the  limits  of  duty 
which  they  intended  to  recognize. 

No  satisfactory  means  exist  for  determining  to 
what  extent  a continuance  of  the  importation  of 
slaves  was  necessary,  in  an  economical  point  of  view, 
to  the  States  of  North  Carolina,  South  Carolina,  and 
Georgia.  There  is  some  reason  to  suppose  that  the 
natural  increase  of  the  slave  population  in  Virginia 
at  that  period  more  than  supplied  her  wants;  and 
perhaps  the  less  healthy  regions  of  the  more  south- 
ern States  may  have  still  required  foreign  supplies 
in  order  to  keep  the  lands  already  occupied  under 
cultivation,  or  to  make  new  lands  productive.1  All 
that  is  historically  certain  on  this  subject  is,  that  the 
representatives  of  the  three  most  southerly  States 
acted  upon  the  belief,  that  their  constituents  would 
not  surrender  the  right  to  continue  the  importation 
of  slaves,  although  they  might,  if  left  to  themselves, 
discontinue  the  practice  at  some  future  time. 

These  declarations,  however,  had  not  been  made 
at  the  time  when  the  principles  on  which  the  Con- 
stitution was  to  be  framed  were  sent  to  the  commit- 

1 See  the  remarks  of  Mr.  Ells-  reported  by  Mr.  Madison,  Elliot, 
worth  and  General  Pinckney,  as  V.  458,  459. 


Ch.  X.| 


SLAVE-TRADE. 


289 


tee  of  detail.  Nothing  had  yet  occurred  in  the 
Convention,  to  make  it  certain  that  the  power  to 
import  would  be  retained  by  any  of  the  States.  The 
committee  of  detail  had,  therefore,  so  far  as  the  ac- 
tion of  the  Convention  had  gone,  an  unrestricted 
choice  between  a full  and  a limited  commercial  pow- 
er. They  consisted  of  three  members  from  non- 
slaveholding and  two  from  slaveholding  States ; 1 but 
as  one  of  them,  Mr.  Rutledge  of  South  Carolina, 
was  one  of  the  persons  who  subsequently  announced 
to  the  Convention  the  position  that  would  be  taken 
by  his  own  State  and  by  North  Carolina  and  Geor- 
gia, there  can  be  no  doubt  that  he  announced  the 
same  determination  in  the  committee.  In  their  re- 
port, they  shaped  the  commercial  power  accordingly. 
They  provided  that  the  legislature  of  the  United 
States  should  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises ; and  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several 
States. 


But  they  also  reported  several  restrictions  upon 
both  the  revenue  and  commercial  powers.  Besides 


providing,  in  accordance 

1 They  were  Messrs.  Rutledge, 
Randolph,  Gorham,  Ellsworth,  and 
"Wilson.  I have  classed  Mr.  Ells- 
worth among  the  representatives 
of  non-slaveholding  States;  for  al- 
though there  were  between  two 
and  three  thousand  slaves  in  Con- 
necticut at  this  time,  provision  had 
already  been  made  for  its  prospec- 
tive and  gradual  abolition.  It  was 
not  finally  extinct  in  that  State 
37 


with  the  ninth  resolution 

until  after  the  year  1840.  The 
United  States  census  for  1790  re- 
turned 2,759  slaves  for  Connect- 
icut; the  census  for  1840  returned 
17  ; in  the  census  for  1850  none 
were  returned.  A like  gradual 
abolition  took  place  in  New  Hamp- 
shire, Rhode  Island,  Vermont,  New 
York,  and  Pennsylvania.  In  Mas- 
sachusetts, slavery  was  abolished  by 
the  State  Constitution  of  1780. 


VOL.  II. 


290 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


adopted  by  the  Convention,  that  direct  taxation 
should  be  proportioned  among  the  States  according 
to  the  census,  to  be  taken  by  a particular  rule,  they 
added  the  further  restrictions,  that  no  tax  or  duty 
should  be  laid  by  the  national  legislature  on  articles 
exported  from  any  State,  nor  on  the  migration  or 
importation  of  such  persons  as  the  several  States 
might  think  proper  to  admit;  that  such  migration 
or  importation  should  not  be  prohibited;  that  no 
capitation  tax  should  be  laid,  unless  in  proportion 
to  the  census ; and  that  no  navigation  act  should  be 
passed  without  the  assent  of  two  thirds  of  the  mem- 
bers present  in  each  house. 

That  the  new  government  must  have  a direct  rev- 
enue power,  was  generally  conceded , and  it  was  also 
generally  admitted  that  it  must  have  a power  to  reg- 
ulate commerce  with  foreign  countries.  But  the 
idea  was  more  or  less  prevalent  among  the  Southern 
statesmen,  that  the  interest  of  their  own  States,  con- 
sidered as  a distinct  and  separate  interest  from  that 
of  the  commercial  States,  did  not  require  a regulation 
of  commerce  by  the  general  government.  It  is  not 
easy  to  determine  to  what  extent  these  views  were 
correct.  Taking  into  consideration  nothing  more 
than  the  fact,  that  the  staple  production  of  Virginia 
was  tobacco,  as  it  was  also  partly  that  of  North  Car- 
olina ; that  rice  and  indigo  were  the  great  products 
of  South  Carolina  and  Georgia ; and  that  neither  of 
these  four  States  possessed  a large  amount  of  ship- 
ping ; — it  might  certainly  be  considered  that  an  un- 
restricted foreign  intercourse  was  important  to  them. 


Ch.  X.] 


REGULATION  OF  COMMERCE. 


291 


But,  on  the  other  hand,  if  those  States,  by  cloth- 
ing the  Union  with  a power  to  regulate  commerce, 
were  likely  to  subject  themselves  to  a temporary  rise 
of  freights,  the  measures  which  might  have  that 
effect  would  also  tend  directly  to  increase  Southern 
as  well  as  Northern  shipping,  to  augment  the  com- 
mercial marine  of  the  whole  country,  and  thus  to 
increase  its  general  maritime  strength.  The  general 
security  thus  promoted  was  as  important  to  one  class 
of  States  as  to  another.  The  increase  of  the  coasting 
trade  would  also  increase  the  consumption  of  the 
produce  of  all  the  States.  The  great  benefit,  how- 
ever, to  be  derived  from  a national  regulation  of 
commerce,  — a benefit  in  which  all  the  States  would 
equally  share,  whatever  might  be  their  productions, 
— was  undoubtedly  the  removal  of  the  existing  and 
injurious  retaliations  which  the  States  had  hitherto 
practised  against  each  other.1 

Still,  these  advantages  were  indirect  or  incidental. 
The  immediate  and  palpable  commercial  interests  of 
different  portions  of  the  Union,  regarded  in  the 
mass,  were  not  identical ; and  it  was  in  one  sense 
true,  that  the  power  of  regulating  commerce  was  a 
concession  on  the  part  of  the  Southern  States  to  the 
Northern,  for  which  they  might  reasonably  expect 
equivalent  advantages,  or  which  they  might  reason- 
ably desire  to  qualify  by  some  restriction. 

On  the  reception  of  the  report  of  the  committee 
of  detail,  and  when  the  article  relating  to  represent- 
ation was  reached,  the  consequences  of  agreeing  that 

1 See  the  remarks  of  Mr.  Madison,  Elliot,  V.  490. 


292 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  slaves  should  be  computed  in  the  rule,  taken  in 
connection  with  an  unrestrained  power  in  the  States 
to  increase  the  slave  populations  by  further  importa- 
tion, and  with  the  exemption  of  exports  from  tax- 
ation, became  more  prominent,  and  more  likely  to 
produce  serious  dissatisfaction.  The  concession  of 
the  slave  representation  had  been  made  by  some  of 
the  Northern  members,  in  the  hope  that  it  might  be 
the  means  of  strengthening  the  plan  of  government, 
and  of  procuring  for  it  full  powers  both  of  revenue 
and  of  commercial  regulation.  But  now,  it  appeared 
that,  as  to  two  very  important  points,  the  hands  of  the 
national  legislature  were  to  be  absolutely  tied.  The 
importation  of  slaves  could  not  be  prohibited;  ex- 
ports could  not  be  taxed.  These  restrictions  seemed 
to  many  to  have  an  inevitable  tendency  to  defeat  the 
great  primary  purposes  of  a national  government. 
All  must  agree,  that  defence  against  foreign  invasion 
and  against  internal  sedition  was  one  of  the  princi- 
pal objects  for  which  such  a government  was  to  be 
established.  Were  all  the  States  then  to  be  bound 
to  defend  each,  and  was  each  to  be  at  liberty  to  in- 
troduce a weakness  which  would  increase  both  its 
own  and  the  general  danger,  and  at  the  same  time 
to  withhold  the  compensation  for  the  burden  ? If 
slaves  were  to  be  imported,  why  should  not  the 
exports  produced  by  their  labor  supply  a revenue, 
that  would  enable  the  general  government  to  defend 
their  masters  1 To  refuse  it,  was  so  inequitable  and 
unreasonable,  said  Ilufus  King,  that  he  could  not 
assent  to  the  representation  of  the  slaves,  unless 


Ch.  X.]  REVENUE  AND  COMMERCIAL  POWERS.  293 

exports  should  be  taxable ; — perhaps  he  could  not 
finally  consent  to  it,  under  any  circumstances.1 

Gouverneur  Morris,  with  his  accustomed  ardor, 
went  further  still,  and  insisted  on  re-opening  the 
subject  of  representation,  now  that  the  other  fea- 
tures of  the  system  were  to  be  made  to  favor  the 
increase  of  slaves,  and  to  throw  the  burdens  of 
maintaining  the  government  chiefly  upon  the  North- 
ern States.  It  was  idle,  he  declared,  to  say  that 
direct  taxation  might  be  levied  upon  the  slave- 
holding States  in  proportion  to  their  representative 
population : for  the  general  government  could  never 
stretch  out  its  hand,  and  put  it  directly  into  the 
pockets  of  the  people,  over  so  vast  a country.  Its 
revenues  must  be  derived  from  exports,  imports, 
and  excises.  He  therefore  would  not  consent  to 
the  sacrifices  demanded,  and  moved  the  insertion 
of  the  word  “ free  ” before  the  word  “ inhabitants,” 
in  the  article  regulating  the  basis  of  representation.2 

But  there  were  few  men  in  the  Convention  bold 
enough  to  hazard  the  consequences  of  unsettling  an 
arrangement,  which  had  cost  so  much  labor  and 
anxiety ; wrhich  had  been  made  as  nearly  correct 
in  theory  as  the  circumstances  of  the  case  would 
allow ; and  which  was,  in  truth,  the  best  prac- 
tical solution  of  a great  difficulty.  Mr.  Morris’s 
motion  received  the  vote  of  a single  State  only.3 
The  great  majority  of  the  delegations  considered 
it  wiser  to  go  on  to  the  discussion  of  the  proposed 

1 Madison,  Elliot,  V.  391,  392.  3 New  Jersey. 

2 Ibid.  392,  393. 


294  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

restrictions  upon  the  revenue  and  commercial  pow- 
ers, in  the  hope  that  each  of  them  might  be  Con- 
sidered and  acted  upon  with  reference  to  the  true 
principles  applicable  to  the  subject,  or  that  the 
whole  might  be  adjusted  by  some  agreement  that 
would  not  disturb  what  had  been  settled  with  so 
much  difficulty. 

The  great  embarrassment  attending  the  proposed 
restriction  upon  the  taxation  of  exports  was,  that, 
however  the  question  might  be  decided,  it  would 
probably  lose  for  the  new  government  the  support 
of  some  important  members  of  the  Convention. 
Those  who  regarded  it  as  right  that  the  govern- 
ment should  have  a complete  revenue  power,  con- 
tended for  the  convenience  with  which  a large  staple 
production,  in  which  America  was  not  rivalled  in 
foreign  markets,  could  be  made  the  subject  of  an 
export  tax,  that  would  in  reality  be  paid  by  the 
foreign  consumer.  On  the  other  side,  the  very  fa- 
cility with  which  such  objects  could  be  selected  for 
taxation  alarmed  the  States  whose  products  pre- 
sented the  best  opportunity  for  exercising  this  pow- 
er. They  did  not  deny  the  obvious  truth,  that  the 
tax  must  ultimately  fall  on  the  consumer ; but  they 
considered  it  enough  to  surrender  the  power  of 
levying  duties  upon  imports,  without  giving  up  the 
control  which  each  State  now  had  over  its  own  pro- 
ductions.1 


1 The  opposition  to  a power  to  Carolina  and  Georgia.  Ellsworth 
tax  exports  was  not  confined  to  the  and  Sherman  of  Connecticut,  Ma- 
members  from  North  and  South  son  of  Virginia,  and  Gerry  of  Mas- 


Ch.  X.]  REVENUE  AND  COMMERCIAL  POWERS.  295 

But  there  was  also  another  question  involved  in 
the  form  in  which  the  proposed  restriction  had  been 
presented.  It  prohibited  the  national  government 
from  taxing  exports,  but  imposed  no  restraint  in 
this  respect  upon  the  power  of  the  States.  If  they 
were  to  retain  the  power  over  their  own  exports, 
they  would  have  the  same  right  to  tax  the  pro- 
ducts of  other  States  exported  through  their  mari- 
time towns.  This  power  had  been  used  to  a great 
extent,  and  always  oppressively.  Virginia  had  taxed 
the  tobacco  of  North  Carolina;  Pennsylvania  had 
taxed  the  products  of  Maryland,  of  New  Jersey,  and 
of  Delaware ; and  it  was  apparent,  that  every  State, 
not  possessed  of  convenient  and  accessible  seaports, 
must  hereafter  submit  to  the  same  exactions,  if  this 
power  were  left  unrestrained.  Give  it  to  the  gen- 
eral government,  said  the  advocates  for  a full  revenue 
power,  and  the  inconveniences  attending  its  exercise 
by  the  separate  States  will  be  avoided.  But  those 
who  were  opposed  to  the  possession  of  such  a power 
by  the  general  government,  apprehended  greater  op- 
pression by  a majority  of  the  States  acting  through 
the  national  legislature,  than  they  could  suffer  at  the 
hands  of  individual  States.  The  eight  Northern 
States,  they  said,  had  an  interest  different  from  the 
five  Southern  States,  and  in  one  branch  of  the  legis- 
lature the  former  were  to  have  thirty-six  votes,  and 
the  latter  twenty-nine. 

From  considerations  like  these,  united  with  others 

sachusetts  considered  such  a power  of  being  exercised  with  equality 
wrong  in  principle,  and  incapable  and  justice. 


296 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


which  would  render  it  nearly  impracticable  to  select 
the  objects  of  such  taxation  so  as  to  make  it  operate 
equally,  the  restriction  prevailed.1  The  revenue 
power  was  thus  shorn  of  one  great  branch  of  tax- 
ation, which,  however  difficult  it  might  be  to  prac- 
tise it  throughout  such  a country  as  this,  is  part 
of  the  prerogatives  of  every  complete  government, 
which  was  believed  by  many  to  be  essential  to  the 
success  of  the  proposed  Constitution,  but  which  was 
resisted  successfully  by  others,  as  oppressive  to  their 
local  and  peculiar  interests. 

Was  the  commercial  power  to  experience  a like 
diminution  from  the  full  proportions  of  a just  au- 
thority over  the  external  trade  of  the  States  ? Were 
the  States,  whose  great  homogeneous  products,  de- 
rived from  the  labor  of  slaves,  would  supply  no  rev- 
enue to  the  national  treasury,  to  be  left  at  liberty  to 
import  all  the  slaves  that  Africa  could  furnish  1 
Were  the  commercial  States  to  see  the  carrying 
trade  of  the  country  — embracing  the  very  exports 
thus  exempted  from  burdens  of  every  kind,  and 
thus  stimulated  by  new  accessions  of  slaves  — pass 


1 The  vote  was  taken  (August 
21)  upon  so  much  of  the  fourth  sec- 
tion of  the  seventh  article  of  the  re- 
ported draft,  as  affirmed  that  “ no 
tax  or  duty  shall  be  laid  by  the 
legislature  on  articles  exported  from 
any  State.”  Massachusetts,  Con- 
necticut, Maryland,  Virginia  (Gen- 
eral Washington  and  Mr.  Madison 
no),  North  Carolina,  South  Caro- 
lina, Georgia,  ay,  7 ; New  Hamp- 


shire, New  Jersey,  Pennsylvania, 
Delaware,  no,  4.  — If  the  subject 
had  been  left  in  this  position,  ex- 
ports would  have  been  taxable  by 
the  States.  The  plan  of  restrain- 
ing the  power  of  the  States  over 
exports  was  subsequently  adopted, 
after  the  compromise  involving  the 
revenue  and  commercial  powers  of 
the  general  government  had  been 
settled. 


Ch.  X.]  REVENUE  AND  COMMERCIAL  POWERS.  297 


into  foreign  bottoms,  and  be  unable  to  protect  their 
interests  by  a majority  of  votes  in  the  national  legis- 
lature! Was  there  to  be  no  advantageous  commer- 
cial treaty  obtained  from  any  foreign  power,  un- 
less the  measures  needful  to  compel  it  could  gain 
the  assent  of  two  thirds  of  Congress'?  Was  the 
North  to  be  shut  out  for  ever  from  the  West  India 
trade,  and  was  it  at  the  same  time  to  see  the  traffic 
in  slaves  prosecuted  without  restraint,  and  without 
the  prospect  or  the  hope  of  a final  termination  ? 

These  were  grave  and  searching  questions.  The 
vote  exempting  exports  from  the  revenue  power 
could  not  be  recalled.  It  had  passed  by  a decided 
majority  of  the  States ; and  many  suffrages  had  been 
given  for  the  exemption,  not  from  motives  of  a sec- 
tional nature,  but  on  account  of  the  difficulty  that 
must  attend  the  exercise  of  the  power,  and  from  the 
conviction  that  such  taxation  is  incorrect  in  princi- 
ple. So  far,  therefore,  the  Southern  States  had 
gained  all  that  they  desired  in  respect  to  the  revenue 
power,  and  now  three  of  them,  with  great  firmness, 
declared  that  the  question  in  relation  to  the  com- 
mercial power  was,  whether  they  should  or  should 
not  be  parties  to  the  Union.  If  required  to  surren- 
der their  right  to  import  slaves,  North  Carolina, 
South  Carolina,  and  Georgia  would  not  accept  the 
Constitution,  although  they  were  willing  to  make 
slaves  liable  to  an  equal  tax  with  other  imports.1  It 
was  also  manifest,  that  the  clause  which  required  a 
navigation  act  to  be  passed  by  two  thirds  of  each 

l Elliot,  V.  457-461. 

38 


VOL.  II. 


298 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


house,  was  to  be  insisted  on  by  some,  although  not 
by  all,  of  the  Southern  membe 

Thus  was  a dark  and  gloomy  prospect  a second 
time  presented  to  the  framers  of  the  Constitution. 
If,  on  the  one  side,  there  were  States  feeling  them- 
selves bound  as  a class  to  insist  on  certain  conces- 
sions, on  the  other  side  were  those  by  whom  such 
concessions  could  not  be  made.  The  chief  motive 
with  the  Eastern,  and  with  most  of  the  Northern 
States,  in  seeking  a new  union  under  a new  frame 
of  government,  was  a commercial  one.  They  had 
suffered  so  severely  from  the  effects  of  the  com- 
mercial policy  of  England  and  other  European  na- 
tions, and  from  the  incapacity  of  Congress  to  control 
that  policy,  that  it  had  become  indispensable  to  them 
to  secure  a national  power  which  could  dictate  the 
terms  and  vehicles  of  commercial  intercourse  with 
the  whole  country.  Cut  off  from  the  British  West 
India  trade  by  the  English  Orders  in  Council,  the 
Eastern  and  Middle  States  required  other  means 
of  counteracting  those  oppressive  regulations  than 
could  be  found  in  their  separate  State  legislation, 
which  furnished  no  power  whatever  for  obtaining  a 
single  commercial  treaty.1  Besides  these  consider- 
ations, which  related  to  the  special  interests  of  the 
commercial  States,  the  want  of  a navy,  which  could 
only  be  built  up  by  measures  that  would  encourage 
the  growth  of  the  mercantile  marine,  and  which,  al- 
though needed  for  the  protection  of  commerce,  was 

1 See  ante,  Vol.  I.  Book  III.  Chap.  IV.,  on  the  origin  and  necessity  of 
the  commercial  power. 


Ch.  x.j  revenue  and  commercial  powers.  299 


also  required  for  the  defence  of  the  whole  country, 
made  it  necessary  that  the  power  to  pass  a naviga- 
tion act  should  be  burdened  with  no  serious  restric- 
tions. 

The  idea  of  requiring  a vote  of  two  thirds  in  Con- 
gress for  the  passage  of  a navigation  act,  founded 
on  the  assumed  diversity  of  Northern  and  Southern, 
or  the  commercial  and  the  planting  interests,  pro- 
ceeded upon  the  necessity  for  a distinct  protection 
of  the  latter  against  the  former,  by  means  of  a 
special  legislative  check.  To  a certain  extent,  as  I 
have  already  said,  these  interests,  when  regarded  in 
their  aggregates,  offered  a real  diversity  But  it  did 
not  follow  that  this  peculiar  check  upon  the  power 
of  a majority  was  either  a necessary  or  an  expedient 
mode  of  providing  against  oppressive  legislation. 
In  every  system  of  popular  government,  there  are 
great  disadvantages  in  departing  from  the  simple 
rule  of  a majority ; and  perhaps  the  principle  which 
requires  the  assent  of  more  than  a majority  ought 
never  to  be  extended  to  mere  matters  of  legislation, 
but  should  be  confined  to  treaty  stipulations,  and  to 
those  fundamental  changes  which  affect  the  nature 
of  the  government  and  involve  the  terms  on  which 
the  different  portions  of  society  are  associated  to- 
gether. 

It  was  undoubtedly  the  purpose  of  those  who 
sought  for  this  particular  restriction,  to  qualify  the 
nature  of  the  government,  in  its  relation  to  the  in- 
terests of  commerce.  But  the  real  question  was, 
whether  there  existed  any  necessary  reason  for  pla- 


300 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


cing  those  interests  upon  a different  footing  from 
that  of  all  other  subjects  of  national  legislation. 
The  operation  of  the  old  rule  of  the  Confederation, 
which  required  the  assent  of  nine  States  in  Congress 
to  almost  all  the  important  measures  of  government, 
many  of  which  involved  no  fundamental  right  of 
separate  States,  had  revealed  the  inconveniences  of 
lodging  in  the  hands  of  a minority  the  power  to  ob- 
struct just  and  necessary  legislation.  If,  indeed,  it 
was  highly  probable  that  the  power,  by  being  left 
with  a majority,  would  be  abused,  — if  the  interests 
of  the  Eastern  and  Middle  States  were  purely  and 
wholly  commercial,  and  would  be  likely  so  to  shape 
the  legislation  of  the  country  as  to  encourage  the 
growth  of  its  mercantile  marine,  at  the  expense  of 
other  forms  of  industry  and  enterprise,  and  no  other 
suitable  and  efficient  checks  could  be  found,  — then 
the  restriction  proposed  might  be  proper  and  ne- 
cessary. 

But  in  truth  the  separate  interests  of  the  Eastern 
and  Middle  States,  when  closely  viewed,  were  not  in 
all  respects  the  same.  Connecticut  and  New  Jersey 
were  agricultural  States.  New  York  and  Pennsylva- 
nia, although  interested  in  maritime  commerce,  were 
destined  to  be  great  producers  of  the  most  important 
grains.  Maryland,  although  a commercial,  was  also 
an  agricultural  State.  The  new  States  likely  to  be 
formed  in  the  West  would  be  almost  wholly  agri- 
cultural, and  would  have  no  more  shipping  than 
might  be  required  to  move  the  surplus  products  of 
their  soil  upon  their  great  inland  lakes  towards  the 


Ch.  X] 


PROPOSITION  OP  COMPROMISE. 


301 


shores  of  the  Atlantic.  All  these  States,  existing 
and  expectant,  were  interested  to  obtain  commercial 
treaties  with  foreign  countries ; all  needed  the  bene- 
fits of  uniform  commercial  regulations ; but  they 
were  not  all  equally  interested  in  a high  degree  of 
encouragement  to  the  growth  of  American  shipping, 
by  means  of  a stringent  navigation  act,  that  would 
bear  heavily  upon  the  Southern  planter. 

Not  only  was  there  a very  considerable  protection 
against  the  abuse  of  its  power  by  a sectional  major- 
ity, in  these  more  minute  diversities  of  interest,  but 
there  were  also  two  very  efficient  legislative  checks 
upon  that  power  already  introduced  into  the  govern- 
ment. If  an  unjust  and  oppressive  measure  had 
commanded  a majority  in  the  House,  it  might  be 
defeated  in  the  Senate,  or,  if  that  check  should  fail, 
it  might  be  arrested  by  the  executive. 

It  had,  nevertheless,  been  made  part  of  the  limi- 
tations upon  the  commercial  power,  embraced  in  the 
report  of  the  committee  of  detail,  that  a navigation 
act  should  require  a vote  of  two  thirds  of  both 
branches  of  the  legislature.  The  vote  which  adopted 
the  prohibition  against  taxes  on  exports,  taken  on 
the  21st  of  August,  was  followed,  on  that  day  and 
the  next,  by  an  excited  debate  on  the  taxation  of  the 
slave-trade,  in  which  the  three  States  of  Georgia, 
North  Carolina,  and  South  Carolina  made  the  limi- 
tation upon  the  power  of  the  Union  over  this  traffic 
the  condition  of  their  accepting . the  Constitution. 
This  debate  was  closed  by  the  proposition  of  Gou- 
verneur  Morris,  to  refer  the  whole  subject  to  a com- 


302 


FOEMATION  OF  THE  CONSTITUTION.  [Book  IV. 


mittee  of  one  from  each  State,  in  order  that  the 
three  matters  of  exports,  the  slave-trade,  and  a nav- 
igation act  might  form  a bargain  or  compromise 
between  the  Northern  and  the  Southern  States.1 
But  the  prohibition  against  taxing  exports  had 
already  been  agreed  to,  and  there  remained  to  be 
committed  only  the  proposed  restriction  against  tax- 
ing or  prohibiting  the  migration  or  importation  of 
such  persons  as  the  States  might  see  fit  to  admit, 
the  restriction  which  required  a capitation  tax  to  con- 
form to  the  census,  and  the  proposed  limitation  upon 
the  power  to  pass  a navigation  act.  Thus,  in  effect, 
the  questions  to  come  before  this  committee  were, 
whether  the  slave-trade  should  be  excepted  from 
both  the  commercial  and  revenue  powers  of  the 
general  government,  and  whether  the  commercial 
power  should  be  subjected  to  a restriction  which 
required  a vote  of  two  thirds  in  dealing  with  the 
commercial  interests  of  the  Union. 

We  know  very  little  of  the  deliberations  of  this 
committee ; but  as  each  State  was  equally  repre- 
sented in  it,  and  as  the  position  of  the  different 
sectional  objects  is  quite  clear,  we  can  have  no  dif- 
ficulty in  forming  an  opinion  as  to  the  motives  and 
purposes  of  the  settlement  which  resulted  from  their 
action,  or  in  obtaining  a right  estimate  of  the  result 
itself. 

In  the  first  place,  then,  we  are  to  remember  the 
previous  concessions  already  made  by  the  Northern 
States,  and  the  advantages  resulting  from  them. 


1 Elliot,  V.  460. 


c II.  X.]  ARRANGEMENT  OF  THE  COMPROMISE. 


303 


These  concessions  were  the  representation  of  the 
slaves  and  the  exemption  of  exports  from  taxation. 
If  the  slaves  had  not  been  included  in  the  system 
of  representation,  the  Northern  States  could  have 
had  no  political  motive  for  acquiring  the  power  to 
put  an  end  to  the  slave-trade.  If  the  exports  of 
their  staple  productions  had  not  been  withdrawn 
from  the  revenue  power,  the  Southern  States  could 
have  had  no  very  strong  or  special  motive  to  draw 
them  into  the  new  Union ; but  with  such  an  ex- 
emption, they  could  derive  benefits  from  the  Con- 
stitution as  great  as  those  likely  to  be  enjoyed  by 
their  Northern  confederates.  Both  parties,  there- 
fore, entered  the  final  committee  of  compromise 
with  a strong  desire  to  complete  the  Union  and 
to  establish  the  new  government.  The  Northern 
States  wished  for  a full  commercial  power,  includ- 
ing the  slave-trade  and  navigation  laws,  to  be  de- 
pendent on  the  voices  of  a majority  in  Congress. 
The  Southern  States  struggled  to  retain  the  right  to 
import  slaves,  and  to  limit  the  enactment  of  naviga- 
tion laws  to  a vote  of  two  thirds.  Both  parties 
could  be  gratified  only  by  conceding  some  portion 
of  their  respective  demands. 

If  the  Northern  States  could  accept  a future, 
instead  of  an  immediate,  prohibition  of  the  slave- 
trade,  they  could  gain  ultimately  a full  commercial 
power  over  all  subjects,  to  be  exercised  by  a national 
majority.  If  the  Southern  States  could  confide  in  a 
national  majority,  so  far  as  to  clothe  them  with  full 
ultimate  power  to  regulate  commerce,  they  could 


304 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


obtain  the  continuance  of  the  slave-trade  for  a lim- 
ited period. 

Such  was  in  reality  the  adjustment  made  and 
recommended  by  the  committee.  They  proposed 
that  the  migration  or  importation  of  such  persons 
as  the  several  States  then  existing  might  think 
proper  to  admit,  should  not  be  prohibited  by  the 
national  legislature  before  the  year  1800,  but  that 
a tax  or  duty  might  be  imposed  on  such  persons, 
at  a rate  not  exceeding  the  average  of  the  duties 
laid  on  imports ; that  the  clause  relating  to  a cap- 
itation tax  should  remain ; and  that  the  provision 
requiring  a navigation  act  to  be  passed  by  a vote  of 
two  thirds,  should  be  stricken  out.1 

No  change  was  made  in  this  arrangement,  when 
it  came  before  the  Convention,  except  to  sub- 
stitute the  year  1808  as  the  period  at  which  the 
restriction  on  the  commercial  power  was  to  termi- 
nate, and  to  provide  for  a specific  tax  on  the  im- 
portation of  slaves,  not  exceeding  ten  dollars  on 
each  person.2  The  remaining  features  of  this  set- 


1 Elliot,  V.  470,  471. 

2 Two  grave  objections  were 
made  to  this  settlement  respecting 
the  importation  of  slaves  Mr. 
Madison  records  himself  as  saying, 
in  answer  to  the  motion  of  General 
Pinckney  to  adopt  the  year  1808, 
that  twenty  years  would  produce 
all  the  mischief  that  could  be  ap- 
prehended from  the  slave-trade, 
and  that  so  long  a term  would  be 
more  dishonorable  to  the  American 
character,  than  to  say  nothing  about 


it  in  the  Constitution.  But  the  real 
question  was,  whether  the  power  to 
prohibit  the  importation  at  any 
time  could  be  acquired  for  the 
Constitution ; and  the  facts  show 
that  it  could  have  been  obtained 
only  by  the  arrangement  proposed 
and  carried.  The  votes  of  seven 
States  against  four,  given  for  Gen- 
eral Pinckney’s  motion,  show  the 
convictions  then  entertained.  The 
other  objection  (urged  by  Roger 
Sherman  and  Mr.  Madison)  was, 


Ch.  x.j  arrangement  of  the  compromise.  305 

tlement,  relating  to  a capitation  tax  and  a naviga- 
tion act,  were  sanctioned  by  a large  majority  of  the 
States.1 

Thus,  by  timely  and  well-considered  concessions 
on  each  side,  was  the  slave-trade  brought  imme- 
diately within  the  revenue  power  of  the  general 
government,  and  also,  at  the  expiration  of  twenty 
years,  within  its  power  to  regulate  commerce.  By 
the  same  means,  the  commercial  power,  without  any 
other  restriction  than  that  relating  to  the  temporary 
toleration  of  the  importation  of  slaves,  was  vested  in 


that  to  lay  a tax  upon  imported 
slaves  implied  an  acknowledgment 
that  men  could  be  articles  of  prop- 
erty. But  it  appears  from  the 
statements  of  other  members,  also 
recorded  by  Madison,  that  it  was 
part  of  the  compromise  agreed 
upon  in  committee,  that  the  slave- 
trade  should  be  placed  under  the 
revenue  power,  in  consideration  of 
its  not  being  placed  at  once  within 
the  commercial  power.  It  also  ap- 
pears that  the  tax  was  made  to 
apply  to  the  “ importation  of  such 
persons  as  the  States  might  see 
fit  to  admit,”  until  the  year  1808, 
in  order  to  include  and  to  dis- 
courage the  introduction  of  con- 
victs. 

But  the  principal  object  was 
undoubtedly  the  slave-trade;  and 
this  particular  phraseology  was  em- 
ployed, instead  of  speaking  directly 
of  the  importation  of  slaves  into  the 
States  of  North  Carolina,  South 
Carolina,  and  Georgia,  in  order,  on 
the  one  hand,  not  to  give  offence  to 
39 


those  States,  and  on  the  other,  to 
avoid  offending  those  who  objected 
to  the  use  of  the  word  “ slaves  ” in 
the  Constitution.  Elliot,  V.  477, 
478. 

1 That  part  of  the  compromise 
relating  to  the  slave-trade,  &e.  was 
adopted  in  Convention  by  the  votes 
of  New  Hampshire,  Massachusetts, 
Connecticut,  Maryland,  North  Car- 
olina, South  Carolina,  Georgia,  ay , 
7 ; New  Jersey,  Pennsylvania,  Del- 
aware, Virginia,  no,  4.  Maryland, 
Virginia,  North  Carolina,  and  Geor- 
gia voted  for  a proposition  made  by 
C.  Pinckney,  to  postpone  the  re- 
port, in  order  to  take  up  a clause 
requiring  all  commercial  regula- 
tions to  be  passed  by  two  thirds 
of  each  house.  But  on  the  rejec- 
tion of  this  motion,  the  report  of 
the  compromise  committee,  recom- 
mending that  a two-thirds  vote  for  a 
navigation  act  be  stricken  out,  was 
agreed  to,  nem.  con. ; as  was  also 
the  clause  relating  to  a capitation 
tax. 


VOL.  II 


306 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


a national  majority.  This  result  at  once  placed  the 
foreign  slave-trade  by  American  vessels  or  citizens 
within  the  control  of  the  national  legislature,  and 
enabled  Congress  to  forbid  the  carrying  of  slaves  to 
foreign  countries;  and  at  the  end  of  the  year  1808, 
it  brought  the  whole  traffic  within  the  reach  of  a 
national  prohibition.1 

Too  high  an  estimate  cannot  well  be  formed,  of  the 
importance  and  value  of  this  final  settlement  of  con- 
flicting sectional  interests  and  demands.  History 
has  to  thank  the  patriotism  and  liberality  of  the 
Northern  States,  for  having  acquired,  for  the  gov- 
ernment of  the  Union,  by  reasonable  concessions, 
the  power  to  terminate  the  African  slave-trade.  We 
know,  from  almost  every  day’s  experience  since  the 
founding  of  the  government,  that  individual  cupid- 
ity, which  knows  no  geographical  limits,  which  de- 
fies public  opinion  whether  in  the  North  or  in  the 
South,  required  and  still  requires  the  restraint  and 
chastisement  of  national  power.  The  separate  au- 
thority of  the  States  would  have  been  wholly  un- 
equal to  the  suppression  of  the  slave-trade : for  even 
if  they  had  all  finally  adopted  the  policy  of  a 
stringent  prohibition,  without  a navy,  and  without 
treaties,  they  could  never  have  contended  against 
the  bold  artifice  and  desperate  cunning  of  avarice, 
stimulated  by  the  enormous  gains  which  have  al- 
ways been  reaped  in  this  inhuman  trade. 

The  just  and  candid  voice  of  History  has  also  to 

1 See  the  note  on  the  American  abolition  of  the  slave-trade,  ante,  Vol. 
I.  p.  460. 


Ch.  X.] 


VALUE  OF  THE  COMPROMISE. 


307 


thank  the  Southern  statesmen  who  consented  to 
this  arrangement,  for  having  clothed  a majority  of 
the  two  houses  of  Congress  with  a full  commercial 
power.  They  felt,  and  truly  felt,  that  this  was  a 
great  concession.  But  they  looked  at  what  they 
had  gained.  They  had  gained  the  exemption  of 
their  staple  productions  from  taxation  as  objects  of 
foreign  commerce;  the  enumeration  of  their  slaves 
in  the  basis  of  Congressional  representation;  and 
the  settlement  of  the  slave-trade  upon  terms  not 
offensive  to  State  pride.  They  had  also  gained  the 
Union,  with  its  power  to  maintain  an  army  and  a 
navy,  — with  its  power  and  duty  to  protect  them 
against  foreign  invasion  and  domestic  insurrec- 
tion, and  to  secure  their  republican  constitutions. 
They  looked,  therefore,  upon  the  grant  of  the 
power  to  regulate  commerce  by  the  ordinary 
modes  of  legislation,  in  its  relations  to  the  in- 
terests of  a great  empire,  whose  foundations  ought 
to  he  laid  broadly  and  deeply  on  the  national  wel- 
fare.1 They  saw  that  the  Revolution  had  cost  the 
Eastern  States  enormous  sacrifices  of  commercial 
wealth,  and  that  the  weakness  of  the  Confederation 
had  destroyed  the  little  remnant  of  their  trade.2 
They  saw  and  admitted  the  necessity  for  an  unre- 
strained control  over  the  foreign  commerce  of  the 
country,  if  it  was  ever  to  rise  from  the  prostrate 
condition  in  which  it  had  been  placed  by  foreign 
powers.  They  acted  accordingly ; and  by  their  ac- 

1 See  the  remarks  of  John  Rut-  2 General  Pinckney.  Ibid.  489. 
ledge.  Madison,  Elliot,  V.  491. 


308 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tion,  they  enabled  the  States  of  North  Carolina, 
South  Carolina,  and  Georgia  to  enter  the  new 
Union  without  humiliation  and  without  loss.1 


1 The  point  respecting  the  slave- 
trade  was  insisted  upon  by  the  del- 
egates of  those  three  States,  both  as 
a matter  of  State  pride  and  a mat- 
ter of  practical  interest.  They  re- 
garded the  increase  of  their  slave 
population  by  new  importations  as 
a thing  of  peculiarly  domestic  con- 
cern, the  control  of  which  they 
were  unwilling  to  transfer  to  the 
general  government.  But  they 
also  contended  for  a political  light 
which  their  States  intended  to  ex- 
ercise. The  following  table,  taken 
from  the  United  States  Census, 
shows  that  in  the  twenty  years 


which  elapsed  from  1790  to  1810 
during  eighteen  of  which  the  im- 
portation of  slaves  could  not  be 
prohibited  by  Congress,  the  slaves 
of  those  three  States  increased  in 
a ratio  so  much  larger  than  the 
rate  of  increase  after  the  year 
1808,  as  to  make  it  apparent  that 
it  was  not  a mere  abstraction  on 
which  they  insisted.  The  right  to 
admit  the  importation  of  slaves  was 
exercised,  and  was  intended  to  be 
exercised  ; — as  some  of  the  dele- 
gates of  the  three  States  declared 
in  the  Convention. 


Progress  of  the  Slave  Population  from  1790  to  1850,  show- 
ing the  Increase  per  Cent  in  each  Period  of  Ten  Years. 


North  Carolina. 


1790  to  1800  32.53 

1800  to  1810*  26.65 

1810  to  1820  21.43 

1820  to  1830  19.79 

1830  to  1840  f 0.08 

1840  to  1850  17.38 


But  while  the  census  shows  that 
the  power  to  admit  slaves  was  ex- 
ercised freely  during  the  twenty 
years  that  followed  the  adoption 
of  the  Constitution  of  the  United 
States,  it  also  shows  that  the  States 
which  insisted  on  retaining  it  for 


South  Carolina. 

Georgia. 

36.46 

102.99 

34.35 

77.12 

31.62 

42.23 

22.62 

45.35 

3.68 

29.15 

17.71 

35.85 

that  period  could  well  afford  to 
surrender  it  at  the  stipulated  time. 
In  1810,  the  proportion  of  the 
blacks  of  North  Carolina  to  the 
whole  population  was  32.24  per 
cent,  and  in  1850  it  was  36.36  ; in 
South  Carolina  the  proportion  in 


* The  constitutional  power  of  Con- 
gress to  prohibit  the  importation  took 
effect  and  was  exercised  in  1808. 
t The  great  diminution  in  the  rates 


of  increase  during  this  period  is  prob- 
ably due  to  the  removal  of  slaves  into 
Alabama,  Arkansas,  Louisiana,  and 
Texas. 


Ch.  X.] 


VALUE  OF  THE  COMPROMISE. 


309 


Thus  was  accomplished,  so  far  as  depended  on  the 
action  of  this  Convention,  that  memorable  compro- 
mise, which  gave  to  the  Union  its  control  over  the 
commercial  relations  of  the  States  with  foreign  na- 
tions and  with  each  other.  An  event  so  fraught 
with  consequences  of  the  utmost  importance  cannot 
be  dismissed  without  some  of  the  reflections  appro- 
priate to  its  consideration. 

Nature  had  marked  America  for  a great  commer- 
cial nation.  The  sweep  of  the  Atlantic  coast,  from 
the  Bay  of  Fundy  to  the  Gulf  of  Florida,  compre- 
hending twenty  degrees  of  latitude,  broken  into  ca- 
pacious bays  and  convenient  harbors,  and  receiving 
the  inward  flow  of  the  sea  into  great  navigable  rivers 
that  stretched  far  into  the  interior,  presented  an  ac- 
cess to  the  ocean  not  surpassed  by  that  of  any  large 
portion  of  the  globe.  This  long  range  of  sea-coast 
embraced  all  the  varieties  of  climate  that  are  found 
between  a hard  and  sterile  region,  where  summer  is 
but  the  breath  of  a few  fervid  weeks,  and  the  ever 
blooming  tropics,  where  winter  is  unknown.  The 
products  of  the  different  regions,  already  entering,  or 
fit  to  enter,  into  foreign  commerce,  attested  as  great 
a variety  of  soils.  The  proximity  of  the  country  to 
the  West  Indies,  where  the  Eastern  and  the  Middle 


1810  was  48.4,  and  in  1850,  58.93  ; 
in  Georgia,  in  1810  it  was  42.4, 
and  in  1850,  42.44.  It  is  not  prob- 
able, therefore,  that  the  prosperity 
of  those  States  has  been  diminished 
by  the  discontinuance  of  the  slave- 
trade  ; for  it  is  not  likely  that  they 


could  well  sustain  a much  larger 
ratio  of  the  blacks  to  the  whites 
than  that  which  now  exists,  and 
which  will  probably  continue  to  be 
maintained  at  about  the  same  point 
for  a long  period  of  time. 


310 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


States  could  find  the  best  markets  for  some  of  their 
most  important  exports,  afforded  the  promise  of  a 
highly  lucrative  trade ; while  the  voyage  to  the  East 
Indies  from  any  American  port  could  be  performed 
in  as  short  a time  as  from  England  or  Holland  or 
France.  In  the  South,  there  were  great  staples  al- 
ready largely  demanded  by  the  consumption  of  Eu- 
rope. In  the  North,  there  were  fisheries  of  singular 
importance,  capable  of  furnishing  enormous  addi- 
tions to  the  wealth  of  the  country.  Beyond  the 
Alleghanies,  the  West,  with  its  vast  internal  waters 
and  its  almost  unequalled  fertility,  had  been  opened 
to  a rapid  emigration,  which  was  soon  to  lay  the 
foundation  of  new  States,  destined  to  be  the  abodes 
of  millions  of  men. 

The  very  variety  and  extent  of  these  interests  had 
for  many  years  occasioned  a struggle  for  some  mode 
of  reconciling  and  harmonizing  them  all.  But  di- 
vided into  separate  governments,  the  commercial 
legislation  of  the  States  could  produce  nothing  but 
the  confusion  and  uncertainty  which  retaliation  ne- 
cessarily engenders.  Different  systems  and  rates  of 
revenue  were  in  force  in  seaports  not  a hundred 
miles  apart,  through  which  the  inhabitants  of  other 
jurisdictions  were  obliged  to  draw  their  supplies  of 
foreign  commodities,  and  to  export  their  own  produc- 
tions. The  paper-money  systems  of  the  several  States 
made  the  commercial  value  of  coin  quite  different  in 
different  places,  and  gave  an  entirely  insecure  basis 
to  trade. 

The  reader,  who  has  followed  me  through  the  pre- 


Ch.  X.] 


BENEFITS  OF  THE  CONSTITUTION. 


311 


ceding  volume,  has  seen  how  the  people  of  the  United 
States,  from  the  earliest  stages  of  the  Revolution, 
struggled  to  free  themselves  from  these  embarrass- 
ments ; — how  they  commenced  with  a jealous  res- 
ervation of  State  authority  over  all  matters  of  com- 
merce and  revenue ; how  they  undertook  to  supply 
the  necessities  of  a central  government  by  contribu- 
tions which  they  had  not  the  power  to  make  good, 
because  their  commercial  condition  did  not  admit  of 
heavy  taxation ; how  they  endeavored  to  pass  from 
this  system  to  a grant  of  temporary  revenues  and 
temporary  commercial  regulation,  to  be  vested  in 
the  federal  Union;  how  they  found  it  impracticable 
to  agree  upon  the  principles  and  details  of  a tempo- 
rary power ; how  they  turned  to  separate  commercial 
leagues,  each  with  its  immediate  neighbors,  and  were 
disappointed  in  the  result  or  frustrated  in  the  effort; 
and  how  at  last  they  came  to  the  conception  of  a full 
and  irrevocable  surrender  of  commercial  and  fiscal 
regulations  to  a central  legislature,  that  could  grasp 
the  interests  of  the  whole  country  and  combine  them 
in  one  harmonious  system. 

The  influence  of  the  commercial  and  revenue  pow- 
ers, thus  obtained  by  the  general  government,  on  the 
condition  of  this  country,  has  far  exceeded  the  most 
sanguine  hopes  which  the  framers  of  the  Constitution 
could  have  indulged.  No  one  can  doubt  that  the 
people  of  America  owe  to  it  both  the  nature  and  the 
degree  of  their  actual  prosperity ; — and  as  the  na- 
tional prosperity  has  given  them  importance  in  the 
world,  it  is  just  and  accurate  to  say,  that  commerce 


312 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


and  its  effects  have  elevated  republican  institutions 
to  a dignity  and  influence  which  they  have  attained 
through  no  other  of  the  forms  or  the  spirit  of  soci- 
ety. Let  the  reader  consider  the  interests  of  com- 
merce, in  their  widest  relations  with  all  that  they 
comprehend,  — the  interests  of  the  merchant,  the 
artisan,  and  the  tiller  of  the  soil  being  alike  involved, 
— as  the  chief  purpose  of  the  new  government  given 
to  this  Union;  let  him  contemplate  this  as  the  cen- 
tral object  around  which  are  arranged  almost  all  the 
great  provisions  of  the  Constitution  of  the  United 
States ; — and  he  will  see  in  it  a wonderfully  harmo- 
nious and  powerful  system,  created  for  the  security  of 
property,  and  the  promotion  of  the  material  welfare 
and  prosperity  of  individuals,  whatever  their  occupa- 
tion, employment,  or  condition.  That  such  a code  of 
civil  government  should  have  sprung  from  the  ne- 
cessities of  commerce,  is  surely  one  of  the  triumphs 
of  modern  civilization. 

It  is  not  to  be  denied,  that  the  sedulous  care  with 
which  this  great  provision  was  made  for  the  general 
prosperity  has  had  the  effect  of  impressing  on  the 
national  character  a strong  spirit  of  acquisition. 
The  character  of  a people,  however,  is  to  be  judged 
not  merely  by  the  pursuit  or  the  possession  of  wealth, 
but  chiefly  by  the  use  which  they  make  of  it.  If  the 
inhabitants  of  the  United  States  can  justly  claim  dis- 
tinction for  the  benevolent  virtues ; if  the  wealth 
that  is  eagerly  sought  and  rapidly  acquired  is  freely 
used  for  the  relief  of  human  suffering ; if  learning, 
science,  and  the  arts  are  duly  cultivated ; if  popular 


Ch.  X.]  BENEFITS  OF  THE  CONSTITUTION.  313 

education  is  an  object  of  lavish  expenditure ; if  the 
institutions  of  religion,  though  depending  on  a pure- 
ly voluntary  support,  are  provided  for  liberally,  and 
from  conscientious  motives ; — then  is  the  national 
spirit  of  acquisition  not  without  fruits,  of  which  it 
has  no  need  to  be  ashamed. 

The  objection,  that  the  Constitution  of  the  United 
States,  and  the  immense  prosperity  which  has  flowed 
from  it,  were  obtained  by  certain  concessions  in  favor 
of  the  institution  of  slavery,  results  from  a merely 
superficial  view  of  the  subject.  If  we  would  form  a 
right  estimate  of  the  gain  or  loss  to  human  nature 
effected  by  any  given  political  arrangement,  we  must 
take  into  consideration  the  antecedent  facts,  and  en- 
deavor to  judge  whether  a better  result  could  have 
been  obtained  by  a different  mode  of  dealing  with 
them.  We  shall  then  be  able  to  appreciate  the  pos- 
itive good  that  has  been  gained,  or  the  positive  loss 
that  has  been  suffered. 

The  prominent  facts  to  be  considered  in  this  con- 
nection are,  in  the  first  place,  that  slavery  existed, 
and  would  long  exist,  in  certain  of  the  States ; and 
that  the  condition  of  the  African  race  in  those  States 
was  universally  regarded  as  a matter  of  purely  local 
concern.  It  could  not  in  fact  have  been  otherwise  ; 
for  there  were  slaves  in  every  State  excepting  Massa- 
chusetts and  New  Hampshire ; and  among  the  other 
States  in  which  measures  had  been,  or  were  likely  to 
be,  taken  for  the  removal  of  slavery,  there  was  a 
great  variety  of  circumstances  affecting  the  time  and 
mode  in  which  it  should  be  finally  extinguished. 

40 


YOL.  II. 


314 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


As  soon  as  the  point  was  settled,  in  the  formation  of 
the  Constitution  of  the  United  States,  that  the  State 
governments  were  to  he  preserved,  with  all  their 
powers  unimpaired  which  were  not  required  by  the 
objects  of  the  national  government  to  be  surrendered 
to  the  Union,  the  domestic  relations  of  their  inhab- 
itants with  each  other  necessarily  remained  under 
their  exclusive  control.  Those  relations  were  not 
involved  in  the  purposes  of  the  Federal  Union. 

So  soon,  also,  as  this  was  perceived  and  admitted, 
it  became  a necessary  consequence  of  the  admission, 
that  the  national  authority  should  guarantee  to  the 
people  of  each  State  the  right  to  shape  and  modify 
their  own  social  institutions ; for  without  this  prin- 
ciple laid  at  the  foundation  of  the  Union,  there  could 
be  no  peace  or  security  for  such  a mixed  system  of 
government. 

In  the  second  place,  we  have  to  consider  the  fact, 
that,  among  the  political  rights  of  the  States  anterior 
to  the  national  Constitution,  was  the  right  to  admit 
or  to  prohibit  the  further  importation  of  slaves ; — a 
traffic  not  then  forbidden  by  any  European  nation  to 
its  Colonies,  but  which  had  been  interdicted  by  ten 
of  the  American  States.  The  transfer  of  this  right 
to  the  Federal  Union  was  a purely  voluntary  act ; it 
was  not  strictly  necessary  for  the  purposes  for  which 
it  was  proposed  to  establish  the  Constitution  of  the 
United  States ; although  there  were  political  reasons 
for  which  a part  of  the  States  might  wish  to  acquire 
control  over  this  subject,  as  well  as  moral  reasons 
why  all  the  States  should  have  desired  to  vest  that 


Ch.  X.]  BENEFITS  OE  THE  CONSTITUTION.  315 

control  in  the  general  government.  Three  of  the 
States,  however,  as  we  have  seen,  took  a different 
view  of  their  interest  and  duty,  and  declined  to  enter 
the  new  Union  unless  this  traffic  should  be  excepted 
from  the  power  over  commerce  for  a period  of  twenty 
years. 

It  is  quite  plain,  that,  if  these  facts  had  been  met 
and  dealt  with  in  a manner  different  from  the  set- 
tlement that  was  actually  made,  one  of  two  conse- 
quences must  have  ensued ; — either  no  Constitution 
at  all  could  have  been  adopted,  or  there  would  have 
been  a Union  of  some  kind,  from  which  three  at 
least  of  the  States  must  have  been  excluded.  If  the 
first,  by  far  the  most  probable  contingency,  had  hap- 
pened, a great  feebleness  and  poverty  of  society  must 
have  continued  to  be  the  lot  of  all  these  States ; there 
must  have  been  perpetual  collisions  and  rival  confed- 
eracies ; there  certainly  would  have  been  an  indefi- 
nite continuance  of  the  slave-trade,  accompanied  and 
followed  by  a great  external  pressure  upon  the  States 
which  permitted  it,  which  would  have  led  to  a war 
of  races,  or  to  a frightful  oppression  of  the  slaves. 
Most  of  these  evils  would  have  followed  the  estab- 
lishment of  a partial  confederacy. 

On  the  other  hand,  we  are  to  consider  what  has 
been  gained  to  humanity  by  the  establishment  of 
the  Constitution.  The  extinction  of  the  slave-trade, 
followed  by  a public  opinion  with  reference  to  it  that 
is  as  strong  and  reliable  in  the  Southern  as  in  the 
Northern  States,  was  purchased  at  a price  by  no 
means  unreasonable,  when  compared  with  the  mag- 


316 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


nitude  of  the  acquisition.  The  great  prosperity  and 
high  civilization  which  are  due  to  the  commercial 
power  of  the  Constitution  have  been  a vast  benefit 
to  both  races ; — to  the  whites  by  the  superior  re- 
finement they  have  created,  and  to  the  blacks  by  the 
gradual  but  certain  amelioration  of  their  condition. 
The  social  strength  and  security  occasioned  by  con- 
stantly increasing  wealth,  combined  with  the  ac- 
knowledgment and  establishment  of  the  doctrine 
which  makes  every  State  the  uncontrolled  arbiter  of 
the  domestic  condition  of  its  inhabitants,  has  put  it 
in  the  power  of  those  who  have  charge  of  the  negro 
to  deal  prudently  and  wisely  with  their  great  prob- 
lem, without  the  interference  of  those  who  could 
benefit  neither  race  by  their  intervention.  This,  in 
every  rational  view  of  the  subject,  cannot  but  be  re- 
garded as  one  of  the  chief  blessings  conferred  by  the 
Constitution  of  the  United  States. 

It  has  made  emancipation  possible,  where  other- 
wise it  would  have  been  impossible,  or  where  it  could 
have  been  obtained  only  through  the  horrors  of  both 
servile  and  civil  war.  It  has  enabled  local  authori- 
ties to  adapt  changes  to  local  circumstances.  Its 
beneficent  influences  may  be  traced  in  the  laws  of 
the  States,  in  the  records  of  their  jurisprudence,  and 
in  the  advanced  and  advancing  condition  of  their 
public  sentiment ; and  he  who  should  follow  those 
influences  in  all  their  details,  and  count  the  sum  of 
what  it  has  effected  for  the  moral  and  physical  well- 
being of  the  subjected  race,  would  find  cause  for  de- 
vout gratitude  to  the  Ruler  of  the  Universe.  Great 


Ch.  X.J 


BENEFITS  OF  THE  CONSTITUTION. 


317 


as  has  been  the  increase  of  slaves  in  the  United  States 
during  the  last  seventy  years,  there  can  be  no  ques- 
tion that  the  general  improvement  of  their  condition 
has  been  equally  great,  and  that  it  has  kept  pace  with 
the  increasing  prosperity  of  the  country.  That  pros- 
perity has  enabled  individual  enterprise  and  benevo- 
lence to  plant  a colony  upon  the  coast  of  Africa, 
which,  after  centuries  of  discipline  and  education, 
may  yet  be  the  means  of  restoring  to  its  native  soil, 
as  civilized  and  Christian  men,  a race  that  came  to 
us  as  heathens  and  barbarians. 

Surely,  then,  with  such  results  to  look  back  upon, 
with  such  hopes  in  the  future,  the  patriot  and  the 
Christian  can  have  no  real  cause  for  regret  or  com- 
plaint, that  in  a system  of  representative  govern- 
ment, made  necessary  by  controlling  circumstances, 
the  unimportant  anomaly  should  be  found,  of  a rep- 
resentation of  men  without  political  rights  or  social 
privileges;  or  that  the  question  of  emancipation, 
either  for  the  mass  or  the  individual,  should  be  care- 
fully secured  to  local  authority;  or  even  that  the 
slave-trade  should  have  been  prosecuted  for  a few 
years,  to  be  extinguished  by  America  first  of  all  the 
nations  of  the  world.  „ 


CHAPTER  XI. 

Report  of  the  Committee  of  Detail,  continued.  — The 
Remaining  Powers  of  Congress.  — Restraints  upon  Con- 
gress AND  UPON  THE  STATES. 

In  the  last  preceding  chapter,  the  reader  has  traced 
the  origin  of  the  revenue  and  commercial  powers,  and 
of  certain  restrictions  applied  to  them  in  the  progress 
of  those  great  compacts,  by  means  of  which  they  be- 
came incorporated  into  the  Constitution.  We  have 
now  to  examine  some  other  qualifications  which 
were  annexed  to  those  powers  after  the  first  draft  of 
the  instrument  had  been  prepared  and  reported  by 
the  committee  of  detail. 

That  committee  had  presented  a naked  power  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises,1 
with  a certain  restriction  as  to  the  taxation  of  ex- 
ports, the  final  disposition  of  which  has  been  already 
described;  but  they  had  designated  no  particular 
objects  to  which  the  revenues  thus  derived  were  to 
be  applied.  The  general  clause  embracing  the  rev- 
enue power  was  affirmed  unanimously  by  the  Con- 
vention, on  the  16th  of  August,  leaving  the  exception 
of  exports  for  future  action.  At  a subsequent  period 
we  find  the  words,  “ to  pay  the  debts  and  provide  for 

1 Art.  VII.  § 1 of  the  first  draft  of  the  Constitution.  Elliot,  Y.  378. 


Ch.  XI.]  PURPOSE  OF  THE  REVENUE  POWER. 


319 


the  common  defence  and  general  welfare  of  the  United 
States,”  added  to  the  clause  which  empowers  Con- 
gress to  levy  taxes  and  duties ; and  it  is  a somewhat 
important  inquiry,  how  and  with  what  purpose  they 
were  placed  there. 

While  the  powers  proposed  by  the  committee  of 
detail  were  under  consideration,  Mr.  Charles  Pinck- 
ney introduced  several  topics  designed  to  supply 
omissions  in  their  report,  which  were  thereupon  re- 
ferred to  that  committee.  The  purpose  of  one  of  his 
suggestions  was  to  provide,  on  the  one  hand,  that 
funds  appropriated  for  the  payment  of  public  credit- 
ors should  not,  during  the  time  of  such  appropria- 
tion, he  diverted  to  any  other  purpose ; and,  on  the 
other  hand,  that  Congress  should  be  restrained  from 
establishing  perpetual  revenues.  Another  of  his 
suggestions  contemplated  a power  to  secure  the  pay- 
ment of  the  public  debt,  and  still  another  to  prevent 
a violation  of  the  public  faith  when  once  pledged  to 
any  public  creditor.1  Immediately  after  this  refer- 
ence, Mr.  Rutledge  moved  for  what  was  called  a 
grand  committee,2  to  consider  the  expediency  of  an 
assumption  by  the  United  States  of  the  State  debts ; 
and  after  some  discussion  of  the  subject,  such  a com- 
mittee was  raised,  and  Mr.  Rutledge’s  motion  was  re- 
ferred to  them,  together  with  a proposition  introduced 
by  Mr.  Mason  for  restraining  grants  of  perpetual 
revenue.3  Thus  it  appears  that  the  principal  subject 

1 August  18.  Elliot,  V.  440.  grand  committee  was  afterwards 

2 A committee  of  one  member  referred  the  subject  of  the  militia, 

from  each  State.  See  infra. 

3 Elliot,  V.  441.  To  the  same 


320  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

involved  in  the  latter  reference  was  the  propriety  of 
inserting  in  the  Constitution  a specific  power  to  make 
special  appropriations  for  the  payment  of  debts  of 
the  United  States  and  of  the  several  States,  incurred 
during  the  late  war  for  the  common  defence  and 
general  welfare;  and  not  to  make  a declaration  of 
the  general  purposes  for  which  revenues  were  to  be 
raised.  Both  committees,  however,  seemed  to  have 
been  charged  with  the  consideration  of  some  restraint 
on  the  revenue  power,  with  a view  to  prevent  per- 
petual taxes  of  any  kind.  The  grand  committee  re- 
ported first,  presenting  the  following  special  provis- 
ion : — “ The  legislature  of  the  United  States  shall 
have  power  to  fulfil  the  engagements  which  have 
been  entered  into  by  Congress,  and  to  discharge,  as 
well  the  debts  of  the  United  States,  as  the  debts  in- 
curred by  the  several  States  during  the  late  war  for 
the  common  defence  and  general  welfare.” 1 On  the 
following  day,  the  committee  of  detail  presented  a 
report,  recommending  that  at  the  end  of  the  clause 
already  adopted,  which  contained  the  grant  of  the 
revenue  power,  the  following  words  should  be  add- 
ed : “ for  payment  of  the  debts  and  necessary  expenses 
of  the  United  States ; provided  that  no  law  for  rais- 
ing any  branch  of  revenue,  except  what  may  be  spe- 
cially appropriated  for  the  payment  of  interest  on 
debts  or  loans,  shall  continue  in  force  for  more  than 
years.”  2 

Two  distinct  propositions  were  thus  before  the 
Convention.  One  of  them  contemplated  a qualifica- 

2 August  22.  Ibid.  462. 


1 August  21.  Elliot,  V.  451. 


Ch.  XI]  PURPOSE  OF  THE  REVENUE  POWER. 


321 


tion  of  the  revenue  power,  the  other  did  not.  One 
was  to  give  authority  to  Congress  to  pay  the  revolu- 
tionary debt,  both  of  the  United  States  and  of  the 
States,  and  to  fulfil  all  the  engagements  of  the  Con- 
federation ; the  other  was  to  declare  that  revenues 
were  to  be  raised  and  taxes  levied  for  the  purpose 
of  paying  the  debts  and  necessary  expenses  of  the 
United  States,  limiting  all  revenue  laws,  excepting 
those  which  were  to  appropriate  specific  funds  to 
the  payment  of  interest  on  debts  or  loans,  to  a 
term  of  years.  When  these  propositions  came  to  be 
acted  upon,  that  reported  by  the  grand  committee 
was  modified  into  the  declaration  that  “ all  debts 
contracted  and  engagements  entered  into,  by  or 
under  the  authority  of  Congress,  shall  be  as  valid 
against  the  United  States,  under  this  Constitution, 
as  under  the  Confederation.”  The  State  debts  were 
thus  left  out;  the  declaration  was  prefixed,  as  an 
amendment,  to  the  clause  which  granted  the  rev- 
enue power,  and  was  thus  obviously  no  qualification 
of  that  power.1 

But  it  was  thought  by  Mr.  Sherman,  that  the 
clause  for  laying  taxes  and  duties  ought  to  have  con- 
nected with  it  an  express  provision  for  the  payment 
of  the  old  debts ; and  he  accordingly  moved  to  add 
to  that  clause  the  words,  “ for  the  payment  of  said 
debts,  and  for  the  defraying  the  expenses  that  shall 
be  incurred  for  the  common  defence  and  general 
welfare.”  This  was  regarded  by  the  Convention  as 

1 See  the  proceedings  which  Elliot,  V.  462,  463, 464,  471,  475  - 
took  place,  August  22,  24,  and  25.  477. 

VOL.  II.  41 


322 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


unnecessary,  and  was  therefore  not  adopted.1  But 
the  provision  reported  by  the  committee  of  detail, 
which  was  intended  as  a qualification  of  the  revenue 
power,  by  declaring  the  objects  for  which  taxes  and 
duties  were  to  be  levied,  had  not  yet  been  acted  upon, 
and  on  the  31st  of  August,  this,  with  all  other  mat- 
ters not  disposed  of,  was  referred  to  a new  grand 
committee,  who,  on  the  4th  of  September,  introduced 
an  amendment  to  the  revenue  clause,  which  made  it 
read  as  follows : — “ The  legislature  shall  have  pow- 
er to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States.” 
This  amendment  was  unanimously  adopted ; 2 and 
when  the  Constitution  was  revised,  at  the  close  of  the 
proceedings,  the  declaration  which  made  the  debts 
and  engagements  of  the  Confederation  obligatory 
upon  the  new  Congress,  was  separated  from  the  con- 
text of  the  revenue  clause,  and  placed  by  itself  in 
the  sixth  article. 

There  is  one  other  restraint  upon  the  revenue,  as 
well  as  upon  the  commercial  power,  the  history  of 
which  now  demands  our  inquiries.  But  in  order  to 
understand  it  correctly,  it  will  be  necessary  for  the 
reader  to  recur  to  the  position  in  which  the  revenue 
and  commercial  powers  were  left  by  the  sectional 
compromises  described  in  the  last  chapter.  The 

1 Elliot,  V.  476,  477.  Mr.  rity  of  the  old  debts  of  the  United 
Madison  says,  “ This  proposition,  as  States, 
being  unnecessary,  was  disagreed  2 Ibid.  506,  507. 

to  ” ; that  is,  unnecessary  as  a secu- 


Ch.  XI.] 


PREFERENCE  OF  PORTS. 


323 


struggle  between  the  Northern  and  the  Southern 
States  concerning  the  limitations  of  those  powers 
turned,  as  we  have  seen,  on  certain  restrictions  de- 
sired by  the  latter.  They  wished  to  have  exports 
excepted  out  of  the  revenue  power;  they  wished 
to  have  a vote  of  two  thirds  made  necessary  to  the 
passage  of  any  commercial  regulation ; and  three  of 
them  wished  to  have  the  slave-trade  excepted  from 
both  the  revenue  and  the  commercial  powers.  We 
have  seen  that  the  result  of  the  sectional  compro- 
mises was  to  leave  the  commercial  and  revenue 
powers  unlimited,  excepting  by  the  saving  in  re- 
lation to  the  slave-trade  ; that  they  left  the  revenue 
power  unlimited,  excepting  by  the  restriction  con- 
cerning exports  and  a capitation  tax ; and  that  the 
commercial  power  was  to  be  exercised,  like  other 
legislative  powers,  by  a majority  in  Congress.  Gen- 
eral commercial  and  revenue  powers,  then,  without 
other  restrictions  than  these,  would  enable  Congress 
to  collect  their  revenues  where  they  should  see  fit, 
without  obliging  them  to  adopt  the  old  ports  of 
entry  of  the  States,  or  to  consider  the  place  where 
a cargo  was  to  be  unladen.  They  might  have 
custom-houses  in  only  one  place  in  each  State, 
or  in  only  such  States  as  they  might  choose  to 
select,  and  might  thus  compel  vessels  bound  from 
or  to  all  the  other  States  to  clear  or  enter  at  those 
places.  But,  on  the  other  hand,  a constitutional 
provision  which  would  require  them  to  establish 
custom-houses  at  the  old  ports  of  entry  of  the 
States,  without  leaving  them  at  liberty  to  establish 


324  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

other  ports  of  entry,  or  to  compel  vessels  to  receive 
on  board  revenue  officers  before  they  had  reached 
their  ports  of  destination,  would  create  opportu- 
nities and  facilities  for  smuggling. 

It  appears  that  the  people  of  Maryland  felt  some 
apprehension  that  an  unrestricted  power  to  make 
commercial  and  fiscal  regulations  might  result  in 
compelling  vessels  bound  to  or  from  Baltimore  to 
enter  or  clear  at  Norfolk,  or  some  other  port  in 
Virginia.  The  delegates  of  Maryland  accordingly 
introduced  a proposition,  which  embraced  two  ideas; 
first,  that  Congress  shall  not  oblige  vessels,  domestic 
or  foreign,  to  enter,  or  pay  duties  or  imposts  in  any 
other  State  than  in  that  to  which  they  may  be 
bound,  or  to  clear  from  any  other  State  than  that 
in  which  their  cargoes  may  be  laden ; secondly, 
that  Congress  shall  not  induce  vessels  to  enter  or 
clear  in  one  State  in  preference  to  another,  by  any 
privileges  or  immunities.1  This  proposition  became 
the  basis  of  that  clause  of  the  Constitution,  which 
declares  that  “ no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another;  nor  shall  vessels 
bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  duties  in  another.”2 

It  was  while  this  subject  of  the  equal  operation 
of  the  commercial  and  revenue  powers  upon  the 
different  States  was  under  consideration,  that  the 

1 Elliot,  V.  478,  479.  on  the  proposition  of  the  Maryland 

2 Constitution,  Art.  I.  § 9.  See  delegates.  Elliot,  V.  478, 479, 483, 
the  proceedings  'which  took  place  502,  545. 


Ch.  XI. J 


COMMERCE  WITH  INDIAN  TRIBES. 


325 


further  provision  was  devised  and  incorporated 
into  the  Constitution,  which  requires  all  duties, 
imposts,  and  excises  to  be  uniform  throughout  the 
United  States.  This  clause,  in  the  final  revision 
of  the  instrument,  was  annexed  to  the  power  of 
taxation.1 

The  commercial  power,  besides  being  subjected 
to  the  restrictions  which  have  been  thus  described, 
was  extended  to  a subject  not  embraced  in  it  by 
the  report  of  the  committee  of  detail.  They  had 
included  in  it  “ commerce  with  foreign  nations, 
and  among  the  several  States  ” ; — meaning,  by  the 
former  term,  not  to  include  the  Indian  tribes  upon 
this  continent,  but  all  other  communities,  civilized 
and  barbarian,  foreign  to  the  people  of  the  United 
States.  By  the  system  which  had  always  prevailed 
in  the  relations  of  Europeans  and  their  descendants 
with  the  Indians  of  America,  those  tribes  had  con- 
stantly been  regarded  as  distinct  and  independent 
political  communities,  retaining  their  original  rights, 
and  among  them  the  undisputed  possession  of  the 
soil ; subject  to  the  exclusive  right  of  the  European 
nation  making  the  first  discovery  of  their  territory 
to  purchase  it.  This  principle,  incorporated  into 
the  public  law  of  Europe  at  the  time  of  the  dis- 
covery and  settlement  of  the  New  World,  and  prac- 
tised by  general  consent  of  the  nations  of  Europe, 
was  the  basis  of  all  the  relations  maintained  with 
the  Indian  tribes  by  the  imperial  government,  in 
the  time  of  our  colonial  state,  by  our  Revolutionary 

1 Elliot,  V.  543.  Constitution,  Art.  I.  § 8,  clause  1. 


326 


FORMATION  OF  THE  CONSTITUTION.  IBook  IV. 


Congress,  and  by  the  United  States  under  the  Con- 
federation. It  recognized  the  Indian  tribes  as  na- 
tions, but  as  nations  peculiarly  situated,  inasmuch 
as  their  intercourse  and  their  power  to  dispose  of 
their  landed  possessions  were  restricted  to  the  first 
discoverers  of  their  territory.  This  peculiar  con- 
dition drew  after  it  two  consequences ; — first,  that, 
as  they  were  distinct  nations,  they  could  not  be 
treated  as  part  of  the  subjects  of  any  one  of  the 
States,  or  of  the  United  States ; and  secondly,  that, 
as  their  intercourse  and  trade  were  subjected  to 
restraint,  that  restraint  would  be  most  appropriately 
exercised  by  the  federal  power.  So  general  was  the 
acquiescence  in  these  necessities  imposed  by  the 
principle  of  public  law  which  defined  the  condi- 
tion of  the  Indian  tribes,  that  during  the  whole 
of  the  thirteen  years  which  elapsed  from  the  com- 
mencement of  the  Revolution  to  the  adoption  of 
the  Constitution,  the  regulation  of  intercourse  with 
those  tribes  was  left  to  the  federal  authority.  It 
was  tacitly  assumed  by  the  Uevolutionary  Congress, 
and  it  was  expressly  conferred  by  the  Articles  of 
Confederation. 

The  provision  of  the  Confederation  on  this  sub- 
ject gave  to  the  United  States  the  exclusive  right 
and  power  “ of  regulating  the  trade  and  managing 
all  affairs  with  the  Indians  not  members  of  any  of 
the  States,  provided  that  the  legislative  right  of  any 
State  within  its  own  limits  be  not  infringed  or  vio- 
lated.” The  exception  of  such  Indians  as  were 
members  of  any  State,  referred  to  those  broken 


Ch.  XI  ] COMMERCE  WITH  INDIAN  TRIBES. 


327 


members  of  tribes  who  had  lost  their  nationality, 
and  had  become  absorbed  as  individuals  into  the 
political  community  of  the  whites.  With  all  other 
Indians,  remaining  as  distinct  and  self-governing 
communities,  trade  and  intercourse  were  subject  to 
the  regulation  of  Congress ; while  at  the  same  time 
each  State  retained  to  itself  the  regulation  of  its 
commerce  with  all  other  nations.  The  broad  dis- 
tinction thus  early  established,  and  thus  perpetu- 
ated in  the  Confederation,  between  commerce  with 
the  Indian  tribes,  and  commerce  with  “foreign  na- 
tions,” explains  the  origin  and  introduction  of  a 
special  provision  for  the  former,  as  distinguished 
from  the  latter,  in  the  Constitution  of  the  United 
States. 

For  although  there  might  have  been  some  reason 
to  contend  that  commerce  with  “foreign  nations”  — 
if  the  grant  of  the  commercial  power  had  not  ex- 
pressly embraced  the  Indian  tribes  — would  have 
extended  to  those  tribes,  as  nations  foreign  to  the 
United  States,  yet  the  entire  history  of  the  country, 
and  the  peculiarity  of  the  intercourse  needful  for 
their  security,  made  it  eminently  expedient  that 
there  should  be  a distinct  recognition  of  the  Indian 
communities,  in  order  that  the  power  of  Congress 
to  regulate  all  commerce  with  them  might  not  only 
be  as  ample  as  that  relating  to  foreign  nations,  but 
might  stand  upon  a distinct  assertion  of  their  con- 
dition as  tribes.  Accordingly,  Mr.  Madison  intro- 
duced the  separate  proposition  “ to  regulate  affairs 
with  the  Indians,  as  well  within  as  without  the 


328 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


limits  of  the  United  States  ” ; 1 and  the  committee 
to  whom  it  was  referred  gave  effect  to  it,  by  adding 
the  words,  “ and  with  the  Indian  tribes,”  to  the  end 
of  the  clause  containing  the  grant  of  the  commercial 
power.2 

The  remaining  powers  of  Congress  may  be  con- 
sidered in  the  order  in  which  they  were  acted  upon 
by  the  Convention.  The  powers  to  establish  a uni- 
form rule  of  naturalization,  to  coin  money  and 
regulate  the  value  thereof  and  of  foreign  coin,  and 
fix  the  standard  of  weights  and  measures,  were 
adopted  without  discussion  and  with  entire  una- 
nimity, as  they  had  been  proposed  in  the  draft 
prepared  by  the  committee  of  detail.  The  power 
to  establish  post-offices  was  extended  to  embrace 
post-roads.3 

These  were  succeeded  by  the  subject  of  borrowing 
money  and  emitting  bills  on  the  credit  of  the  United 
States ; a power  that  was  proposed  to  be  given  by 
the  committee  of  detail,  while  they  at  the  same  time 
proposed  to  restrain  the  States  from  emitting  bills  of 
credit.  I have  not  been  able  to  discover  upon  what 
ground  it  was  supposed  to  be  proper  or  expedient 
to  confer  a power  of  emitting  bills  of  credit  on  the 
United  States,  and  to  prohibit  the  States  from  doing 
the  same  thing.  That  the  same  thing  was  in  con- 
templation in  the  two  provisions  reported  by  the 
committee,  sufficiently  appears  from  the  debates  and 
from  the  history  of  the  times.  The  object  of  the 

3 Ibid.  434.  Journal,  Elliot,  I. 
245. 


3 Elliot,  Y.  439. 
2 Ibid.  506,  507. 


Ch.  XI.] 


POWER  TO  BORROW  MONEY. 


329 


prohibition  on  the  States  was  to  prevent  the  issue 
and  circulation  of  paper  money ; the  object  of  the 
proposed  grant  of  power  to  the  United  States  was 
to  enable  the  government  to  employ  a paper  cur- 
rency, when  it  should  have  occasion  to  do  so.  But 
the  records  of  the  discussions  that  have  come  down 
to  us  do  not  disclose  the  reasons  which  may  have 
led  to  the  supposition  that  a paper  currency  could 
be  used  by  the  United  States  with  any  more  pro- 
priety or  safety  than  by  a State.  One  of  the  prin- 
cipal causes  which'  had  led  to  the  experiment  of 
making  a national  government  with  power  to  pre- 
vent such  abuses,  had  been  the  frauds  and  injustice 
perpetrated  by  the  States  in  their  issues  of  paper 
money;  and  there  was  at  this  very  time  a loud  and 
general  outcry  against  the  conduct  of  the  people  of 
Rhode  Island,  who  had  kept  themselves  aloof  from 
the  national  Convention,  for  the  express  purpose, 
among  others,  of  retaining  to  themselves  the  power 
to  issue  such  a currency. 

It  is  possible  that  the  phrase  “ emit  bills  on  the 
credit  of  the  United  States  ” might  have  been  left  in 
the  Constitution,  without  any  other  danger  than  the 
hazards  of  a doubtful  construction,  which  would  have 
confined  its  meaning  to  the  issuing  of  certificates  of 
debt  under  the  power  to  “ borrow  money.”  But  this 
was  not  the  sense  in  which  the  term  “ bills  of  credit” 
was  generally  received  throughout  the  country,  nor 
the  sense  intended  to  be  given  to  it  in  the  clause 
which  contained  the  prohibition  on  the  States.  The 
well-understood  meaning  of  the  term  had  reference 

42 


VOL.  II. 


330 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


to  paper  issues,  intended  to  circulate  as  currency, 
and  bearing  the  public  promise  to  pay  a sum  of 
money  at  a future  time,  whether  made  or  not  made 
a legal  tender  in  payment  of  debts.  It  would  have 
been  of  no  avail,  therefore,  to  have  added  a prohi- 
bition against  making  such  bills  a legal  tender.  If 
a power  to  issue  them  should  once  be  seen  in  the 
Constitution,  or  should  be  suspected  by  the  people 
to  be  there,  wrapt  in  the  power  of  borrowing  money, 
the  instrument  would  array  against  itself  a formi- 
dable and  probably  a fatal  opposition.  It  was 
deemed  wiser,  therefore,  even  if  unforeseen  emer- 
gencies might  in  some  cases  make  the  exercise  of 
such  a power  useful,  to  withhold  it  altogether.  It 
was  accordingly  stricken  out,  by  a vote  of  nine 
States  against  two,  and  the  authority  of  Congress 
was  thus  confined  to  borrowing  money  on  the  credit 
of  the  United  States,  which  appears  to  have  been 
intended  to  include  the  issuing  of  government  notes 
not  transferable  as  currency.1 

The  clauses  which  authorize  Congress  to  consti- 
tute tribunals  inferior  to  the  Supreme  Court,2  and 
to  make  rules  as  to  captures  on  land  and  water,3  — 
the  latter  comprehending  the  grant  of  the  entire 
prize  jurisdiction,  — were  assented  to  without  dis- 
cussion.4 Then  came  the  consideration  of  the  crim- 
inal jurisdiction  in  admiralty,  and  that  over  offences 

1 See  the  debate,  and  Mr.  Mad-  2 Constitution,  Art.  I.  § S,  clause 

ison’s  explanation  of  his  vote,  El-  9. 

liot,  Y.  434,  435,  and  the  note  on  3 Ibid.,  clause  11. 

the  latter  page.  4 Elliot,  Y.  436. 


Ch.  XI.] 


POWER  TO  DEFINE  OFFENCES. 


331 


against  the  law  of  nations.  The  committee  of  detail 
had  authorized  Congress  “ to  declare  the  law  and 
punishment  of  piracies  and  felonies  committed  on 

the  high  seas, and  of  offences  against  the  law 

of  nations.”  The  expression  to  “ declare  the  law,” 
&c.  was  changed  to  the  words  “ define  and  punish,” 
for  the  following  reason.  Piracy  is  an  offence  de- 
fined by  the  law  of  nations,  and  also  by  the  common 
law  of  England.  But  in  those  codes  a single  crime 
only  is  designated  by  that  term.1  It  was  necessary 
that  Congress  should  have  the  power  to  declare 
whether  this  definition  was  to  be  adopted,  and  also 
to  determine  whether  any  other  crimes  should  con- 
stitute piracy.  In  the  same  way,  the  term  “ felony  ” 
has  a particular  meaning  in  the  common  law,  and 
it  had  in  the  laws  of  the  different  States  of  the 
Union  a somewhat  various  meaning.  It  was  neces- 
sary that  Congress  should  have  the  power  to  adopt 
any  definition  of  this  term,  and  also  to  determine 
what  other  crimes  should  be  deemed  felonies.  So 
also  there  were  various  offences  known  to  the  law 
of  nations,  and  generally  regarded  as  such  by  civ- 
ilized States.  But  before  Congress  could  have  pow- 
er to  punish  for  any  of  those  offences,  it  would  be 
necessary  that  they,  as  the  legislative  organ  of  the 
nation,  should  determine  and  make  known  what 
acts  were  to  be  regarded  as  offences  against  the 
law  of  nations ; and  that  the  power  to  do  this 
should  include  both  the  power  to  adopt  from  the 

1 That  is  to  say,  it  is  the  same  that  is  denominated  robbery  when 
crime,  committed  on  the  high  seas,  committed  on  the  land. 


332 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


code  of  public  law  offences  already  defined  by  that 
code,  and  to  extend  tbe  definition  to  other  acts. 
The  term  “ declare  ” was  therefore  adopted  expressly 
with  a view  to  the  ascertaining  and  creating  of  of- 
fences, which  were  to  be  treated  as  piracies  and  fel- 
onies committed  on  the  high  seas,  and  as  offences 
against  the  law  of  nations.1 

The  same  necessity  for  an  authority  to  prescribe 
a previous  definition  of  the  crime  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States 
would  seem  to  have  been  felt ; and  it  was  probably 
intended  to  be  given  by  the  terms  “ to  provide  for 
the  punishment  of”  such  counterfeiting.2 

The  power  to  “ declare  ” war  had  been  reported 
by  the  committee  as  a power  to  “ make  ” war.  There 
was  a very  general  acquiescence  in  the  propriety  of 
vesting  the  war  power  in  the  legislature  rather 
than  the  executive ; but  the  former  expression  was 
substituted  in  place  of  the  latter,  in  order,  as  it 
would  seem,  to  signify  that  the  legislature  alone 
were  to  determine  formally  the  state  of  war,  but 
that  the  executive  might  be  able  to  repel  sudden 
attacks.3  The  clause  which  enables  Congress  to 
grant  “ letters  of  marque  and  reprisal  ” was  added 
to  the  war  power,  at  a subsequent  period,  on  the 
recommendation  of  a committee  to  whom  were  re- 

1 Madison,  Elliot,  V.  436,  437.  revision  of  the  Constitution,  coun- 

2 In  the  clause  as  it  passed  the  terfeiting  was  placed  in  a separate 
Convention,  the  offence  of  counter-  clause,  under  the  term  “ to  provide 
feiting  was  placed  with  the  other  for  the  punishment  of,”  & c.  See 
crimes  which  Congress  was  to  “ de-  Art.  I.  § 8,  clauses  6,  10. 

fine”  and  “punish”;  hut,  on  the  3 Elliot,  V.  438,  439. 


Ch.  XI  ] POWER  TO  RAISE  AND  SUPPORT  ARMIES.  333 

ferred  sundry  propositions  introduced  by  Charles 
Pinckney,  of  which  this  was  one.1 

In  addition  to  the  war  power,  which  would  seem 
to  involve  of  itself  the  authority  to  raise  all  the 
necessary  forces  required  by  the  exigencies  of  a 
war,  the  committee  of  detail  had  given  the  separate 
power  “ to  raise  armies,”  which  the  Convention  en- 
larged by  adding  the  term  to  “ support.” 2 This 
embraced  standing  armies  in  time  of  peace,  and,  as 
the  clause  thus  amended  would  obviously  allow, 
such  armies  might  be  enlarged  to  any  extent  and 
continued  for  any  time.  The  nature  of  the  gov- 
ernment, and  the  liberties  and  the  very  prejudices 
of  the  people,  required  that  some  check  should  be 
introduced,  to  prevent  an  abuse  of  this  power.  A 
limitation  of  the  number  of  troops  that  Congress 
might  keep  up  in  time  of  peace  was  proposed,  but 
it  wras  rejected  by  all  the  States  as  inexpedient  and 
impracticable.3  Another  check,  capable  of  being 
adapted  to  the  proper  exercise  of  the  power  itself, 
was  to  be  found  in  an  idea  suggested  by  Mr.  Mason, 
of  preventing  a perpetual  revenue.4  The  application 
of  this  principle  to  the  power  of  raising  and  support- 
ing armies  would  furnish  a salutary  limitation,  by 
requiring  the  appropriations  for  this  purpose  to  pass 
frequently  under  the  review  of  the  representatives  of 
the  people,  without  embarrassing  the  exercise  of  the 
power  itself.  Accordingly,  the  clause  now  in  the 
Constitution,  which  restricts  the  appropriation  of 

1 Elliot,  Y.  440,  510,  511.  3 Ibid.  443. 

2 Ibid.  442.  4 Ibid.  440. 


334 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


money  to  the  support  of  the  army  to  a term  not 
longer  than  two  years,  was  added  to  the  power  of 
raising  and  supporting  armies.1 

Authority  “ to  provide  and  maintain  a navy  ” was 
unanimously  agreed  as  the  most  convenient  definition 
of  the  power,  and  to  this  was  added,  from  the  Articles 
of  Confederation,  the  power  “ to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval 
forces.”2 

The  next  subject  which  required  consideration 
was  the  power  of  the  general  government  over  the 
militia  of  the  States.  There  were  few  subjects  dealt 
with  by  the  framers  of  the  Constitution  exceeding 
this  in  magnitude,  in  importance,  and  delicacy.  It 
involved  not  only  the  relations  of  the  general  govern- 
ment to  the  States  and  the  people  of  the  States,  but 
the  question  whether  and  how  far  the  whole  effect- 
ive force  of  the  nation  could  be  employed  for  national 
purposes  and  directed  to  the  accomplishment  of  ob- 
jects of  national  concern.  The  mode  in  which  this 
question  should  be  settled  would  determine,  in  a 
great  degree,  and  for  all  time,  whether  the  national 
power  was  to  depend,  for  the  discharge  of  its  various 
duties  in  peace  and  in  war,  upon  standing  armies,  or 
whether  it  could  also  employ  and  rely  upon  that 
great  reservation  of  force  that  exists  in  all  countries 
accustomed  to  enroll  and  train  their  private  citizens 
to  the  use  of  arms. 

The  American  Revolution  had  displayed  nothing 

1 Elliot,  V.  510,  511  Constitu- 
tion, Art.  I.  § 8,  clause  1 2. 


2 Elliot,  V.  443. 


Ch.  XI.] 


POWER  OVER  THE  MILITIA. 


335 


more  conspicuously  than  the  fact,  that,  while  the  mi- 
litia of  the  States  were  in  general  neither  deficient 
in  personal  courage,  nor  incapable  of  being  made  sol- 
diers, they  were  inefficient  and  unreliable  as  troops. 
One  of  the  principal  reasons  for  this  was,  that,  when 
called  into  the  field  in  the  service  of  the  federal  pow- 
er, the  different  corps  of  the  several  States  looked 
up  to  their  own  local  government  as  their  sovereign ; 
and  being  amenable  to  no  law  but  that  of  their  own 
State,  they  were  frequently  indisposed  to  recognize 
any  other  authority.  But  a far  more  powerful  cause 
of  their  inefficiency  lay  in  the  fact  that  they  were 
not  disciplined  or  organized  or  armed  upon  any  uni- 
form system.  A regiment  of  militia  drawn  from 
New  Hampshire  was  a very  different  body  from  one 
drawn  from  New  York,  or  Pennsylvania,  or  New  Jer- 
sey, or  South  Carolina.  The  consequence  was,  that 
when  these  different  forces  were  brought  to  act  to- 
gether, there  were  often  found  in  the  same  campaign, 
and  sometimes  in  the  same  engagement,  portions  of 
them  in  a very  respectable  state  of  discipline  and 
equipment,  and  others  in  no  state  of  discipline  or 
equipment  at  all. 

The  necessity,  therefore,  for  a uniform  system  of 
disciplining  and  arming  the  militia  was  a thing  well 
ascertained  and  understood,  at  the  time  of  the  for- 
mation of  the  Constitution.  But  the  control  of  this 
whole  subject  was  a part  of  the  sovereignty  of  each 
State,  not  likely  to  be  surrendered  without  great 
jealousy  and  distrust ; and  one  of  the  most  delicate 
of  the  tasks  imposed  upon  the  Convention  was  that 


336 


FOEMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  determining  how  far  and  for  what  purposes  the 
people  of  the  several  States  should  be  ashed  to  con- 
fer upon  the  general  government  this  very  important 
part  of  their  political  sovereignty.  One  thing,  how- 
ever, was  clear ; — that,  if  the  general  government 
was  to  be  charged  with  the  duty  of  undertaking  the 
common  defence  against  an  external  enemy,  or  of 
suppressing  insurrection,  or  of  protecting  the  repub- 
lican character  of  the  State  constitutions,  it  must 
either  maintain  at  all  times  a regular  army  suitable 
for  any  such  emergency,  or  it  must  have  some  power 
to  employ  the  militia.  The  latter,  when  compared 
with  the  resource  of  standing  armies,  is,  as  was  said 
of  the  institution  of  chivalry,  “ the  cheap  defence  of 
nations  ” ; and  although  no  nation  has  found,  or  will 
be  likely  to  find,  it  sufficient,  without  the  mainte- 
nance of  some  regular  troops,  the  nature  of  the  lib- 
erties inherent  in  the  construction  of  the  American 
governments,  and  the  whole  current  of  the  feelings 
of  the  American  people,  would  lead  them  to  the 
adoption  of  a policy  that  might  restrain,  rather  than 
encourage,  the  growth  of  a permanent  army.  So  far, 
therefore,  it  seemed  manifest,  from  the  duties  which 
were  to  be  imposed  on  the  government  of  the  Union, 
that  it  must  have  a power  to  employ  the  militia  of 
the  States ; and  this  would  of  necessity  draw  after  it, 
if  it  was  to  be  capable  of  a beneficial  exercise,  the 
power  to  regulate,  to  some  extent,  their  organization, 
armament,  and  discipline. 

But  the  first  draft  of  the  Constitution,  prepared 
by  the  committee  of  detail,  contained  no  express 


Ch.  XI.]  POWER  OYER  THE  MILITIA.  337 

power  on  this  subject,  excepting  “ to  call  forth  the 
aid  of  the  militia  in  order  to  execute  the  laws  of 
the  Union,  enforce  treaties,  suppress  insurrections, 
and  repel  invasions.”  1 Possibly  it  might  have  been 
contended,  after  the  Constitution  had  gone  into  op- 
eration, that  the  general  power  to  make  all  laws  ne- 
cessary and  proper  for  the  execution  of  the  powers 
specially  enumerated,  would  enable  Congress  to  pre- 
scribe regulations  of  the  force  which  they  were  au- 
thorized to  employ,  since  the  authority  to  employ 
would  seem  to  involve  the  right  to  have  the  force 
kept  in  a fit  state  to  be  employed.  But  this  would 
have  been  a remote  implication  of  power,  too  hazard- 
ous to  be  trusted ; and  it  at  once  occurred  to  one  of 
the  wisest  and  most  sagacious  of  the  statesmen  com- 
posing the  Convention,  who,  though  he  never  signed 
the  Constitution,  exercised  a great  and  salutary  influ- 
ence in  its  preparation,  — Mr.  Mason  of  Virginia,  — 
that  an  express  and  unequivocal  power  of  regulating 
the  militia  must  be  conferred.  He  stated  the  obvi- 
ous truth,  that,  if  the  disciplining  of  the  militia  were 
left  in  the  hands  of  the  States,  they  never  Avould 
concur  in  any  one  system ; and  as  it  might  be  diffi- 
cult to  persuade  them  to  give  up  their  power  over 
the  whole,  he  was  at  first  disposed  to  adopt  the  plan 
of  placing  a part  of  the  militia  under  the  control  of 
the  general  government,  as  a select  force.2  But  he, 
as  well  as  others,  became  satisfied  that  this  plan  would 
not  produce  a uniformity  of  discipline  throughout 

1 Art.  VII.  § 1 of  the  first  draft.  2 Ibid.  440. 

Elliot,  V.  379. 


VOL.  II. 


43 


338 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  entire  mass  of  the  militia.  The  question,  there- 
fore, resolved  itself  practically  into  this,  — what 
should  be  the  nature  and  extent  of  the  control  to  be 
given  to  the  general  government,  assuming  that  its 
control  was  to  be  applicable  to  the  entire  militia  of 
the  several  States.  This  important  question,  involved 
in  several  distinct  propositions,  was  referred  to  a 
grand  committee  of  the  States.1  It  was  by  them  that 
the  plan  was  digested  and  arranged  by  which  Con- 
gress noAV  has  the  power  to  provide  for  organizing, 
arming,  and  disciplining  the  militia,  and  for  govern- 
ing such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  States 
the  appointment  of  the  officers,  and  the  authority  of 
training  the  militia  according  to  the  discipline  pre- 
scribed by  Congress; 2— - a provision  that  was  adopted 
by  a large  majority  of  the  States.  The  clause  re- 
ported by  the  committee  of  detail  was  also  adopted, 
by  which  Congress  is  enabled  to  provide  for  calling 
forth  the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrections,  and  repel  invasions.3 

The  next  subject  in  the  order  of  the  report  made 
by  the  committee  of  detail  was  that  general  clause 
now  found  at  the  close  of  the  enumeration  of  the 
express  powers  of  Congress,  which  authorizes  them 
“ to  make  all  laws  which  may  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the 
government  of  the  United  States,  or  in  any  depart- 

1 August  18.  Elliot,  Y.  445.  3 Art.  I.  § 8,  cl.  15. 

2 Constitution,  Art.  I.  § 8,  cL  16.  Ibid.  p.  467. 


Ch.  XI.] 


PATENTS  AND  COPYRIGHTS. 


339 


ment  or  officer  thereof.”  1 Nothing  occurred  in  the 
proceedings  on  this  provision  which  throws  any  par- 
ticular light  upon  its  meaning,  excepting  a proposi- 
tion to  include  in  it,  expressly,  the  power  to  “ estab- 
lish all  offices  ” necessary  to  execute  the  powers  of 
the  Constitution ; an  addition  which  was  not  made, 
because  it  was  considered  to  be  already  implied  in 
the  terms  of  the  clause.2 

The  subjects  of  patents  for  useful  inventions  and 
of  copyrights  of  authors  appear  to  have  been  brought 
forward  by  Mr.  Charles  Pinckney.  They  gave  rise 
to  no  discussion  in  the  Convention,  but  were  consid- 
ered in  a grand  committee,  with  other  matters,  and 
there  is  no  account  of  the  views  which  they  took  of 
this  interesting  branch  of  the  powers  of  Congress. 
We  know,  however,  historically,  that  these  were 
powers  not  only  possessed  by  all  the  States,  but  ex- 
ercised by  some  of  them,  before  the  Constitution  of 
the  United  States  was  formed.  Some  of  the  States 
had  general  copyright  laws,  not  unlike  those  which 
have  since  been  enacted  by  Congress ; 3 but  patents 
for  useful  inventions  were  granted  by  special  acts  of 
legislation  in  each  case.  When  the  power  to  legis- 
late on  these  subjects  was  surrendered  by  the  States 
to  the  general  government,  it  was  surrendered  as  a 
power  to  legislate  for  the  purpose  of  securing  a 
natural  right  to  the  fruits  of  mental  labor.  This 
was  the  view  of  it  taken  in  the  previous  legislation 

1 Constitution,  Art.  I.  § 8,  cl.  18.  setts  and  Connecticut,  & c.  cited 

2 Elliot,  V.  447.  in  Curtis  on  Copyright,  pp.  77,  78, 

a See  the  statutes  of  Massachu-  79. 


340 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  the  States,  by  which  the  power  conferred  upon 
Congress  must  of  course,  to  a large  extent,  be  con- 
strued. 

Such  are  the  legislative  powers  of  Congress,  which 
are  to  be  exercised  within  the  States  themselves ; — 
and  it  is  at  once  obvious,  that  they  constitute  a gov- 
ernment of  limited  authority.  The  question  arises, 
then,  whether  that  authority  is  anywhere  full  and 
complete,  embracing  all  the  powers  of  government 
and  extending  to  all  the  objects  of  which  it  can  take 
cognizance.  It  has  already  been  seen,  that,  when 
provision  was  made  for  the  future  acquisition  of  a 
seat  of  government,  exclusive  legislation  over  the 
district  that  might  be  acquired  for  that  purpose  was 
conferred  upon  Congress.1  In  the  same  clause,  the 
like  authority  was  given  over  all  places  that  might 
be  purchased,  with  the  consent  of  any  State  legisla- 
ture, for  the  erection  of  forts,  magazines,  arsenals, 
dock-yards,  and  other  needful  buildings.2  All  the 
other  places  to  which  the  authority  of  the  United 
States  can  extend  are  included  under  the  term  “ ter- 
ritories,” which  are  out  of  the  limits  and  jurisdic- 
tion of  any  State.  As  this  is  a subject  which  is 
intimately  connected  with  the  power  to  admit  new 
States  into  the  Union,  we  are  now  to  consider  the 
origin  and  history  of  the  authority  given  to  Con- 
gress for  that  purpose. 

In  examining  the  powers  of  Congress  contained  in 
the  first  article  of  the  Constitution,  the  reader  will  not 
find  any  power  to  admit  new  States  into  the  Union ; 

1 Ante,  Chap.  IX.  2 Elliot,  V.  510,  511,  512. 


Ch.  XI.  | 


POWER  OYER  TERRITORIES 


341 


and  while  he  will  find  there  the  full  legislative  au- 
thority to  govern  the  District  of  Columbia  and  certain 
other  places  ceded  to  the  United  States  for  particu- 
lar purposes,  of  which  I have  already  spoken,  he  will 
find  no  such  authority  there  conferred  in  relation  to 
the  territory  which  had  become  the  property  of  the 
United  States  by  the  cession  of  certain  of  the  States 
before  and  after  the  adoption  of  the  Articles  of  Con- 
federation. If  this  power  of  legislation  exists  as  to 
the  territories,  it  is  to  be  looked  for  in  another  con- 
nection; and  although  it  is  not  the  special  province 
of  this  work  to  discuss  questions  of  construction,  it  is 
proper  here  to  state  the  history  of  those  portions  of 
the  Constitution  which  relate  to  this  branch  of  the 
authority  of  Congress. 

In  the  first  volume  of  this  work,  I have  given  an 
account  of  the  origin  of  the  Northwestern  Territory, 
of  its  relations  to  the  Union,  and  of  the  mode  in 
which  the  federal  Congress  had  dealt  with  it  down 
to  the  time  when  the  national  Convention  was  as- 
sembled.1 From  the  sources  there  referred  to,  and 
from  others  to  which  reference  will  now  be  made,  it 
may  be  convenient  to  recapitulate  what  had  been 
done  or  attempted  by  the  Congress  of  the  Confed- 
eration. 

It  appears  that  during  the  preparation  of  the 
Articles  of  Confederation  an  effort  was  made  to  in- 
clude in  them  a grant  of  express  power  to  the  United 
States  in  Congress  to  ascertain  and  fix  the  western 
boundaries  of  the  existing  States,  and  to  lay  out  the 

1 Ante , Vol.  I.  Book  HI.  ch.  5,  p.  291  et  seq. 


342 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


territory  beyond  the  boundaries  that  were  to  be 
thus  ascertained  into  new  States.  This  effort  to- 
tally failed.  It  was  founded  upon  the  idea  that 
the  land  beyond  the  rightful  boundaries  of  the  old 
States  was  already,  or  would  by  the  proposed  grant 
of  power  to  ascertain  those  boundaries  become,  the 
common  property  of  the  Union.  But  the  States, 
which  then  claimed  an  uncertain  extension  west- 
ward from  their  actual  settlements,  were  not  pre- 
pared for  such  an  admission,  or  such  a grant ; and 
accordingly  the  Articles  of  Confederation,  which 
were  issued  in  1777  and  took  effect  in  1781,  con- 
tained no  express  power  to  deal  with  landed  prop- 
erty of  the  United  States,  and  no  provision  which 
could  safely  be  construed  into  a power  to  form  and 
admit  new  States  out  of  then  unoccupied  lands  any- 
where upon  the  continent.  Still,  the  Articles  were 
successively  ratified  by  some  of  the  States,  and  finally 
became  established,  in  the  express  contemplation  that 
the  United  States  should  be  made  the  proprietor  of 
such  lands,  by  the  cession  of  the  States  which  claimed 
to  hold  them.  In  order  to  procure  such  cessions,  as 
the  means  of  inducing  a unanimous  accession  to  the 
confederacy,  the  Congress  in  1780  passed  a resolve, 
in  which  they  promised  to  dispose  of  the  lands  for 
the  common  benefit  of  the  United  States,  to  settle 
and  form  them  into  distinct  republican  States,  and 
to  admit  such  States  into  tfte  Union  on  an  equal 
footing  Avith  its  present  members.1  The  great  ces- 
sion by  Virginia,  made  in  1784,  was  immediately 

1 Resolve  of  October  10,  1780.  Journals,  VI.  325. 


Ch.  XI. J 


POWER  OVER  TERRITORIES. 


343 


followed  by  another  resolve,  for  the  regulation  of  the 
territory  thus  acquired.1 

This  resolve,  as  originally  reported  by  Mr.  Jeffer- 
son, embraced  a plan  for  the  organization  of  tempo- 
rary governments  in  certain  States  which  it  under- 
took to  describe  and  lay  out  in  the  Western  territory, 
and  for  the  admission  of  those  States  into  the  Union. 
In  one  particular,  also,  it  undertook,  as  it  was  first 
reported,  to  regulate  the  personal  rights  or  relations 
of  the  settlers,  by  providing  that,  after  the  year  1800, 
slavery,  or  involuntary  servitude  except  for  crime, 
should  not  exist  in  any  of  the  States  to  be  formed  in 
the  territory.  But  this  clause  was  stricken  out  be- 
fore the  resolve  was  passed,  and  its  removal  left  the 
measure  a mere  provision  for  the  political  organiza- 
tion of  temporary  and  permanent  governments  of 
States,  and  for  the  admission  of  such  States  into  the 
Union.  So  far  as  personal  rights  or  relations  were 
involved  in  it,  the  settlers  were  authorized  to  adopt, 
for  a temporary  government,  the  constitution  and 
laws  of  any  one  of  the  original  States,  but  the  laws 
were  to  be  subject  to  alteration  by  their  ordinary 
legislature.  The  conditions  of  their  admission  into 
the  Union  referred  solely  to  their  political  relations 
to  the  United  States,  or  to  the  rights  of  the  latter  as 
the  proprietor  of  the  ungranted  lands. 

In  about  a year  from  the  passage  of  this  measure 
introduced  by  Mr.  Jefferson,  and  after  he  had  gone 
on  his  mission  to  France,  an  effort  was  made  by  Mr. 
King  to  legislate  on  the  subject  of  the  immediate  and 

1 Resolve  of  April  23,  1784.  Journals,  IX.  153. 


344 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


perpetual  exclusion  of  slavery  from  the  States  de- 
scribed in  Mr.  Jefferson’s  resolve.  Mr.  King’s  prop- 
osition was  referred  to  a committee,  but  it  does  not 
appear  that  it  was  ever  acted  upon.1  The  cessions 
of  Massachusetts  and  Connecticut  followed,  in  1785 
and  1786.  Within  two  years  from  this  period,  such 
had  been  the  rapidity  of  emigration  and  settlement, 
and  so  inconvenient  had  become  the  plan  of  1784, 
that  Congress  felt  obliged  to  legislate  anew  on  the 
whole  subject  of  the  Northwestern  Territory,  and 
proceeded  to  frame  and  adopt  the  Ordinance  of  July 
13,  1787.  This  instrument  not  only  undertook  to 
make  political  organizations,  and  to  provide  for  the 
admission  of  new  States  into  the  Union,  but  it  also 
dealt  directly  with  the  rights  of  individuals.  Its  ex- 
clusion of  slavery  from  the  territory  is  well  known 
as  one  of  its  fundamental  articles,  not  subject  to  al- 
teration by  the  people  of  the  territory,  or  their  legis- 
lature. 

The  power  of  Congress  to  deal  with  the  admission 
of  new  States  was  not  only  denied  at  the  time,  but 
its  alleged  want  of  such  power  was  one  of  the  prin- 
cipal reasons  which  were  said  to  require  a revision  of 
the  federal  system.  It  does  not  appear  that  the  sub- 
ject of  legislation  on  the  rights  or  condition  of  per- 
sons attracted  particular  attention ; nor  do  we  know, 
from  anything  that  has  come  down  to  us,  that  the 
clause  relating  to  slavery  was  stricken  from  Mr.  Jef- 

1 March  16, 1785.  Journals,  X.  of  the  Ordinance  of  1787,  in  the 
79.  See  ante,  Vol.  I.  p.  299.  Appendix  to  this  volume*— 

- See  the  note  on  the  authorship 


Ch.  XI.] 


POWER  OYER  TERRITORIES. 


345 


ferson’s  resolve  in  1784,  upon  the  special  ground  of 
a want  of  constitutional  power  to  legislate  on  such  a 
question.  But  Mr.  Jefferson  has  himself  informed 
us,  that  a majority  of  the  States  in  Congress  would 
not  consent  to  construe  the  Articles  of  Confederation 
as  if  they  had  reserved  to  nine  States  in  Congress 
power  to  admit  new  States  into  the  Union  from  the 
territorial  possessions  of  the  United  States  ; and  that 
they  so  shaped  his  measure,  as  to  leave  the  question 
of  power  and  the  rule  for  voting  to  be  determined 
when  a new  State  formed  in  the  territory  should  ap- 
ply for  admission.1  It  seems,  also,  that  although  the 
power  to  frame  territorial  governments,  to  organize 
States  and  admit  them  into  the  Union,  was  assunfed 
in  the  Ordinance  of  1787,  the  Congress  of  the  Con- 
federation never  acted  upon  the  power  so  far  as  to 
admit  a State.2  Finally,  we  are  told  by  Mr.  Madi- 
son, in  the  Federalist,  that  all  that  had  been  done  in 
the  Ordinance  by  the  Congress  of  the  Confederation, 
including  the  sale  of  lands,  the  organization  of  gov- 
ernments, and  the  prescribing  of  conditions  of  admis- 
sion into  the  Onion,  had  been  done  “ without  the 
least  color  of  constitutional  authority”;3  — an  asser- 
tion which,  whether  justifiable  or  not,  shows  that 
the  power  of  legislation  was  by  some  persons  stren- 
uously denied.4 


1 Ante , Chap.  IV.  p.  77,  note. 

2 See  the  proceedings  concern- 
ing Kentucky,  in  1788.  Journals, 
XIII.  16,  32,  51,  52,  55. 

3 The  Federalist,  No.  38. 

4 The  passage  quoted  from  Mr. 
44 


Jefferson,  ante,  p.  77,  also  shows 
that  strong  doubts  were  felt  in  Con- 
gress, in  1784,  respecting  their  pow- 
er to  admit  new  States  formed  out 
of  unoccupied  territory.  Indeed, 
the  whole  of  the  proceedings  upon 


VOL.  II. 


346  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

With  regard  to  the  powers  of  Congress,  under  the 
Confederation,  to  erect  new  States  in  the  Northwest- 
ern Territory,  and  to  admit  them  into  the  Union,  the 
truth  seems  to  be  this.  There  is  no  part  of  the  Ar- 
ticles of  Confederation  which  can  be  said  to  confer 
such  a power ; and,  in  fact,  when  the  Articles  were 
framed,  the  Union,  although  it  then  existed  by  an 
imperfect  bond,  not  only  possessed  no  such  territory, 
but  it  did  not  then  appear  likely  to  become  the  pro- 
prietor of  lands,  claimed  by  certain  of  the  States  as 
the  successors  of  the  crown  of  Great  Britain,  and 
lying  within  what  they  regarded  as  their  original 
chartered  limits.  The  refusal  of  those  States  to  al- 
low the  United  States  to  determine  their  boundaries, 
made  it  unnecessary  to  provide  for  the  exercise  of 
authority  over  a public  domain.  But  in  the  interval 
between  the  preparation  of  the  Articles  and  their 
final  ratification,  a great  change  took  place  in  the 
position  of  the  Union.  It  was  found  that  certain  of 
the  smaller  States  would  not  become  parties  to  the 
Confederation,  if  the  great  States  were  to  persist  in 
their  refusal  to  cede  to  the  Union  their  claims  to  the 
unoccupied  Western  lands;  and  although  the  States 
which  thus  held  themselves  back,  for  a long  time, 
from  the  ratification  of  the  Articles,  finally  adopted 
them,  before  the  cessions  of  Western  territory  were 

Mr.  Jefferson’s  measure  of  April  gates.  See  Journals,  IX.  138- 
23,  1784,  show  that  the  powers  of  156.  The  State  of  South  Caro- 
Congress  over  the  territory  that  had  lina  voted  against  the  resolve  on 
been  acquired  under  the  cession  its  final  passage,  and  after  it  had 
of  Virginia  were  very  variously  been  modified  to  meet  some  of  the 
regarded  by  the  different  dele-  objections  raised. 


Ch.  XI.] 


POWER  OYER  TERRITORIES. 


347 


made,  they  did  so  upon  the  most  solemn  assertion 
that  they  expected  and  confided  in  a future  relin- 
quishment of  their  claims  by  the  other  States.  Those 
just  expectations  were  fulfilled.  By  the  acts  of  ces- 
sion, and  by  the  proceedings  of  Congress  which  in- 
vited them,  the  United  States  not  only  became  the 
proprietors  of  a great  public  domain,  but  they  re- 
ceived that  domain  upon  the  express  trust  that  its 
lands  should  be  disposed  of  for  the  common  benefit, 
and  that  the  country  should  be  settled  and  formed 
into  republican  States,  and  that  those  States  should 
be  admitted  into  the  Union.  In  these  conveyances, 
made  and  accepted  upon  these  trusts,  there  was  a 
unanimous  acquiescence  by  the  States. 

While,  therefore,  in  the  formal  instrument  under 
which  the  Congress  was  organized,  and  by  which  the 
United  States  became  a corporate  body,  there  was  no 
article  which  looked  to  the  admission  of  new  States 
into  that  body,  formed  out  of  territory  thus  acquired, 
and  no  power  was  conferred  to  dispose  of  such  lands 
or  govern  such  territory,  there  were,  outside  of  that 
instrument,  and  closely  collateral  to  it,  certain  great 
compacts  between  the  States,  arising  out  of  deeds  of 
cession  and  the  formal  guaranties  by  which  those 
cessions  had  been  invited,  and  with  which  they  had 
been  received,  which  proceeded  as  if  there  were  a 
competent  authority  in  the  United  States  in  Con- 
gress to  provide  for  the  formation  of  the  States  con- 
templated, and  for  their  admission  into  the  Union. 
Strictly  speaking,  however,  there  was  no  such  au- 
thority. It  was  to  be  gathered,  if  at  all,  from  public 


348 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


acts  and  general  acquiescence,  and  could  not  be 
found  in  the  instrument  that  formed  the  charter  and 
established  the  powers  of  the  Congress.  It  was  an 
authority,  therefore,  liable  to  be  doubted  and  denied ; 
it  was  one  for  the  exercise  of  which  the  Congress 
was  neither  well  fitted  nor  well  situated ; and  it  was 
moreover  so  delicate,  so  extensive,  and  so  different 
from  all  the  other  powers  and  duties  of  the  govern- 
ment, as  to  make  it  eminently  necessary  to  have  it 
expressly  stated  and  conferred  in  the  instrument  un- 
der which  all  the  other  functions  of  the  government 
were  to  be  exercised.1 

Such  was  the  state  of  things  at  the  period  of  the 
formation  of  the  Constitution ; and  as  we  are  to  look 
for  the  germ  of  every  power  embraced  in  that  instru- 


1 I think  we  are  to  understand 
Mr.  Madison’s  assertion  in  the  Fed- 
eralist, — that  what  had  been  done 
by  Congress  in  relation  to  the  North- 
western Territory  was  without  con- 
stitutional authority,  — to  mean, 
that  it  had  been  done  without  the 
authority  of  any  proper  constitu- 
tional provision.  Mr.  Madison 
himself,  being  a member  of  Con- 
gress in  1783,  voted  for  the  accep- 
tance of  a report,  by  the  adoption 
of  which  Congress  settled  the  con- 
ditions on  which  the  cession  of 
Virginia  was  to  be  received  by  the 
United  States.  These  conditions 
embraced  the  whole  of  the  three 
fundamental  points,  that  the  terri- 
tory should  be  held  and  disposed 
of  for  the  common  benefit  of  the 
United  States,  that  it  should  be  di- 


vided into  States,  and  that  those 
States  should  be  admitted  into  the 
Union.  So  that  Mr.  Madison  was 
a party  to  the  arrangement  by 
which  Congress  undertook  to  hold 
out  these  promises  to  the  States. 
(Journals  of  Congress  for  Septem- 
ber 13,  1783,  VIII.  355  - 359.) 
But  he  was  not  a member  of  Con- 
gress in  1 784,  when  Mr.  Jefferson’s 
measure  was  adopted ; and  although 
he  was  a member  in  1787,  when  the 
Ordinance  was  adopted,  he  was  at 
that  time  in  attendance  upon  the 
national  Convention,  and  conse- 
quently never  voted  upon  the  Ordi- 
nance. His  participation  in  the 
proceedings  of  the  Convention,  by 
which  the  necessary  power  was 
created,  shows  his  sense  of  its  ne- 
cessity. 


Ch.  XL] 


POWER  OYER  TERRITORIES. 


349 


ment  in  some  stage  of  the  proceedings  which  took 
place  in  the  course  of  its  preparation,  it  is  important 
at  once  to  resort  to  the  first  suggestion  of  any  author- 
ity over  these  subjects.  In  doing  so,  we  are  to  re- 
member that  the  United  States  had  accepted  cessions 
of  the  Northwestern  Territory,  impressed  with  two 
distinct  trusts : first,  that  the  country  should  be  set- 
tled and  formed  into  distinct  republican  States,  which 
should  be  admitted  into  the  Union;  secondly,  that 
the  lands  should  be  disposed  of  for  the  common  ben- 
efit of  all  the  States.1 

Accordingly,  we  find  in  the  plan  of  government 
presented  by  Governor  Randolph  at  the  opening  of 
the  Convention,  a resolution  declaring  “ that  provis- 
ion ought  to  be  made  for  the  admission  of  States 
lawfully  arising  within  the  limits  of  the  United  States, 
whether  from  a voluntary  junction  of  government 
and  territory  or  otherwise,  with  the  consent  of  a 
number  of  voices  in  the  national  legislature  less  than 
the  whole.”2  This  resolution  remained  the  same  in 
phraseology  and  in  purpose  through  all  the  stages 
to  which  the  several  propositions  that  formed  the 
outline  of  the  new  government  were  subjected,  down 
to  the  time  when  they  were  sent  to  the  committee  of 
detail  for  the  purpose  of  having  the  Constitution 
drawn  out.  Looking  to  the  manifest  want  of  power 

1 See  especially  the  cession  by  Journals,  XI.  221.  Also  the  re- 
Virginia,  of  March  1,  1784.  Jour-  solve  of  Congress  passed,  in  antici- 
nals  of  Congress,  IX.  6 7.  Cession  pation  of  these  cessions,  October 
by  Massachusetts,  April  19,  1785.  10,  1780.  Journals,  VI.  325. 

Journals,  X.  128.  Cession  by  2 Resolution  10.  Madison,  El- 
Connecticut,  September  13,  1786.  liot,  V.  128. 


350 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


in  the  Confederation  to  admit  new  States  into  the 
Union  ; to  the  probability  that  Vermont,  Kentucky, 
Tennessee  (then  called  Franklin),  and  Maine, — 
none  of  which  were  embraced  in  any  cessions  that 
had  then  been  made  to  the  United  States,  — might 
become  separate  States  ; and  to  the  prospective  legis- 
lation of  the  Ordinance  of  1787  concerning  the  ad- 
mission of  States  that  were  to  be  formed  in  the  terri- 
tory northwest  of  the  Ohio,  which  had  been  ceded  to 
the  Union ; — it  seems  quite  certain  that  the  purpose 
of  the  resolution  was  to  supply  a power  to  admit 
new  States,  whether  formed  from  the  territory  of  one 
of  the  existing  States,  or  from  territory  that  had  be- 
come the  exclusive  property  of  the  United  States. 
The  resolution  contained,  however,  no  positive  re- 
striction, which  would  require  the  assent  of  any  ex- 
isting State  to  the  separation  of  a part  of  its  territory  ; 
but  as  the  States  to  be  admitted  were  to  be  those 
“ lawfully  arising,”  it  is  apparent  that  the  original 
intention  was  that  no  present  State  should  be  dis- 
membered without  its  consent.  But  in  order  to 
make  this  the  more  certain,  the  committee  of  detail, 
in  the  article  in  which  they  carried  out  the  resolu- 
tion, gave  effect  to  its  provisions  in  these  words : — 
“New  States  lawfully  constituted  or  established  with- 
in the  limits  of  the  United  States  may  be  admitted, 
by  the  legislature,  into  this  government ; but  to  such 
admission  the  consent  of  two  thirds  of  the  members 
present  in  each  house  shall  be  necessary.  If  a new 
State  shall  arise  within  the  limits  of  any  of  the  pres- 
ent States,  the  consent  of  the  legislatures  of  such 


Ch.  XI.] 


POWER,  OYER  TERRITORIES. 


351 


States  shall  be  also  necessary  to  its  admission.  If 
the  admission  be  consented  to,  the  new  States  shall 
be  admitted  on  the  same  terms  with  the  original 
States.  But  the  legislature  may  make  conditions 
with  the  new  States  concerning  the  public  debt  which 
shall  be  then  subsisting.” 1 

In  the  first  draft  of  the  Constitution,  therefore, 
there  was  contained  a qualified  power  to  admit  new 
States,  whether  arising  within  the  limits  of  any  of 
the  old  States,  or  within  the  territory  of  the  United 
States.  But  in  this  proposition  there  Avas  a great 
omission;  for  although  the  States  to  be  admitted  Avere 
to  be  those  lawfully  arising,  and  such  a State  might 
be  formed  out  of  the  territory  of  an  existing  State  by 
the  legislative  poAver  of  the  latter,  yet  it  Avas  not  as- 
certained hoAv  a State  Avas  “ laAvfully  to  arise  ” in  the 
territory  of  the  United  States.  Nor  Avas  there,  at 
present,  any  provision  introduced  into  the  Constitu- 
tion by  AAThich  Congress  could  dispose  of  the  soil  of 
the  national  domain.  These  as  AATell  as  other  omis- 
sions at  once  attracted  the  attention  of  Mr.  Madison, 
Avho,  as  AAre  have  seen,  held  the  opinion  that  the  en- 
tire legislation  of  the  old  Congress  in  reference  to 
the  Northwestern  Territory  Avas  Avithout  constitution- 
al authority.  Before  the  article  Avhich  embraced  the 
admission  of  neAV  States  Avas  reached,  he  moved  the 
folloAving  among  other  poAvers : 2 “to  dispose  of  the 
unappropriated  lands  of  the  United  States”;  and  “to 
institute  temporary  governments  for  neAV  States  aris- 

1 Art.  XVII.  of  the  draft  pre-  2 August  IS.  Elliot,  Vol.  V.  p. 
pared  by  the  committee  of  detail.  439. 

Elliot,  V.  381. 


352 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


ing  therein.”  These  propositions  were  referred  to 
the  committee  of  detail,  but  before  any  action  upon 
them,  the  article  previously  reported  by  that  com- 
mittee was  reached  and  taken  up,  and  there  ensued 
upon  it  a course  of  proceeding  which  resulted  in  the 
provisions  that  now  stand  in  the  third  section  of  the 
fourth  article  of  the  Constitution.1 

The  first  alteration  made  in  the  article  reported 
by  the  committee  was  to  strike  out  the  clause  which 
declared  that  the  new  States  should  be  admitted  on 
an  equal  footing  with  the  old  ones.  The  reason  as- 
signed for  this  change  was,  that  the  legislature  ought 
not  to  be  tied  down  to  such  an  admission,  as  it  might 
throw  the  balance  of  power  into  the  Western  States.2 
The  next  modification  was  to  strike  out  the  clause 
which  required  a vote  of  two  thirds  of  the  members 
present  for  the  admission  of  a State.3  This  left  the 
proposed  article  a mere  grant  of  power  to  admit  new 
States,  requiring  the  consent  of  the  legislature  of  any 
State  that  might  be  dismembered,  as  well  as  the  con- 
sent of  Congress.  An  earnest  effort  was  then  made, 
by  some  of  the  members  from  the  smaller  States,  to 
remove  this  restriction,  upon  the  ground  that  the 
United  States,  by  the  treaty  of  peace  with  England, 
had  become  the  proprietor  of  the  crown  lands  which 
were  situated  within  the  limits  claimed  by  some  of 
the  States  that  would  be  likely  to  be  divided ; and  it 
was  urged,  that  to  require  the  consent  of  Virginia, 
North  Carolina,  and  Georgia  to  the  separation  of 

1 August  29.  Elliot,  Y.  492  - 2 Ibid.  492,  493. 

497.  3 Ibid.  493. 


Ch.  XI.] 


ADMISSION  OF  NEW  STATES. 


353 


their  Western  settlements,  might  give  those  States  an 
improper  control  over  the  title  of  the  United  States 
to  the  vacant  lands  lying  within  the  jurisdiction 
claimed  by  those  States,  and  would  enable  them  to 
retain  the  jurisdiction  unjustly,  against  the  wish  of 
the  settlers.  But  a large  majority  of  the  States  re- 
fused to  concede  a power  to  dismember  a State,  with- 
out its  consent,  by  taking  away  even  its  claims  to 
jurisdiction.  It  was  considered  by  them,  that  as  to 
municipal  jurisdiction  over  settlements  already  made 
within  limits  claimed  by  Virginia,  North  Carolina, 
and  Georgia,  the  Constitution  ought  not  to  interfere, 
without  the  joint  consent  of  the  settlers  and  the 
State  exercising  such  jurisdiction ; that  if  the  title 
to  lands  unoccupied  at  the  treaty  of  peace,  lying  with- 
in the  originally  chartered  limits  of  any  of  the  States, 
was  in  dispute  between  them  and  the  United  States, 
that  controversy  would  be  within  the  reach  of  the 
judicial  power,  as  one  between  a State  and  the  United 
States,  or  it  might  be  terminated  by  a voluntary  ces- 
sion of  the  State  claim  to  the  Union.1 

The  next  step  taken  in  the  settlement  of  this  sub- 
ject was  to  provide  for  the  case  of  Vermont,  which 
was  then  in  the  exercise  of  an  independent  sovereign- 
ty, although  it  was  within  the  asserted  limits  of  New 
York.  It  was  thought  proper,  in  this  particular 
case,  not  to  make  the  State  of  Vermont,  already 

1 See  the  vote  on  a proposition  by  Great  Britain  in  the  treaty  of 
moved  by  Mr.  Carroll  for  a recom-  peace.  New  Jersey,  Delaware,  and 
mitment  for  the  purpose  of  assert-  Maryland  alone  voted  for  the  re- 
ing  in  the  Constitution  the  right  of  commitment.  Elliot,  V.  493,  494. 
the  United  States  to  the  lands  ceded 
45 


VOL.  II. 


354 


FOKMATION  OF  THE  CONSTITUTION.  [Book  IV. 


formed,  dependent  for  her  admission  into  the  Union 
on  the  consent  of  New  York.  For  this  reason,  the 
words  “ hereafter  formed  ” were  inserted  in  the  ar- 
ticle under  consideration,  and  the  word  “jurisdic- 
tion” was  substituted  for  “ limits.”  1 Thus  modified, 
the  article  stood  as  follows : — 

“ New  States  may  be  admitted  by  the  legislature 
into  the  Union ; but  no  new  State  shall  be  hereafter 
formed  or  erected  within  the  jurisdiction  of  any  of 
the  present  States,  without  the  consent  of  the  legis- 
lature of  such  State,  as  well  as  of  the  general  legis- 
lature.” 

This  provision  was  quite  unsatisfactory  to  the  mi- 
nority. They  wished  to  have  the  Constitution  assert 
a distinct  power  in  Congress  to  erect  new  States 
within,  as  well  as  without,  the  territory  claimed  by 
any  of  the  States,  and  to  admit  such  new  States  into 
the  Union ; and  they  also  wished  for  a saving  clause 
to  protect  the  title  of  the  United  States  to  vacant 
lands  ceded  by  the  treaty  of  peace.  Luther  Martin 
accordingly  moved  a substitute  article,  embracing 
these  two  objects,  but  it  was  rejected.2  A clause 
was  then  added  to  the  article  pending,  which  de- 
clared that  no  State  should  be  formed  by  the  junc- 
tion of  two  or  more  States,  or  parts  of  States,  •with- 
out the  consent  of  the  States  concerned,  as  well  as 
the  consent  of  Congress.  This  completed  the  sub- 
stance of  what  is  now  the  first  clause  of  the  third 
section  of  the  fourth  article  of  the  Constitution.3 

1 Elliot,  V.  495.  3 When  the  Constitution  -was 

2 Ibid.  496.  New  Jersey,  Dela-  finally  revised,  the  word  “hereaf- 

ware,  and  Maryland,  ay.  ter  ” was  left  out  of  the  first  clause 


Ch.  XI.] 


POWER  OVER  TERRITORIES. 


355 


Mr.  Carroll  thereupon  renewed  the  effort  to  intro- 
duce a clause  saving  the  rights  of  the  United  States 
to  vacant  lands ; and  after # some  modification,  he 
finally  submitted  it  in  these  words : “ Nothing  in 
this  Constitution  shall  be  construed  to  alter  the 
claims  of  the  United  States,  or  of  the  individual 
States,  to  the  Western  territory;  but  all  such  claims 
shall  be  examined  into,  and  decided  upon,  by  the 
Supreme  Court  of  the  United  States.”  Before  any 
vote  was  taken  upon  this  proposition,  however,  Gou- 
vemeur  Morris  moved  to  postpone  it,  and  brought 
forward  as  a substitute  the  very  provision  which  now 
forms  the  second  clause  of  the  third  section  of  arti- 
cle fourth,  which  he  presented  as  follows : “ The  legis- 
lature shall  have  power  to  dispose  of,  and  make  all 
needful  rules  and  regulations  respecting,  the  territory 
or  other  property  belonging  to  the  United  States  ; 
and  nothing  in  this  Constitution  contained  shall  be 
so  construed  as  to  prejudice  any  claims,  either  of  the 
United  States  or  of  any  particular  State.”  This  pro- 
vision was  adopted,  without  any  other  dissenting  vote 
than  that  of  the  State  of  Maryland.1 

The  purpose  of  this  provision,  as  it  existed  at  the 
time  in  the  minds  of  the  framers  of  the  Constitution, 
must  be  gathered  from  the  whole  course  of  their  pro- 
ceedings with  respect  to  it,  and  from  the  surround- 
ing facts,  which  exhibit  what  was  then,  and  what 

of  the  third  section  of  article  fourth,  within  the  “ jurisdiction ,”  although 
apparently  because  the  phraseology  it  was  within  the  asserted  limits,  of 
of  the  clause  was  sufficient,  without  the  State  of  New  York, 
it,  to  save  the  case  of  Vermont,  1 Elliot,  V.  496,  497. 
which  was  regarded  as  not  being 


356 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


was  afterwards  likely  to  become,  the  situation  of  the 
United  States  in  reference  to  the  acquisition  of  terri- 
tory and  the  admission  .of  new  States.  There  were, 
then,  at  the  time  when  this  provision  Avas  made,  four 
classes  of  cases  in  the  contemplation  of  the  Conven- 
tion. The  first  consisted  of  the  Northwestern  Terri- 
torry,  in  which  the  title  to  the  soil  and  the  political 
jurisdiction  were  already  vested  in  the  United  States. 
The  second  embraced  the  case  of  Vermont,  which 
was  then  exercising  an  independent  jurisdiction  ad- 
versely to  the  State  of  New  York,  and  the  case  of 
Kentucky,  then  a district  under  the  jurisdiction  of 
Virginia ; in  both  of  which  the  United  States  neither 
claimed  nor  sought  to  acquire  either  the  title  to  the 
vacant  lands  or  the  rights  of  political  sovereignty, 
but  which  would  both  require  to  be  received  as  new 
and  separate  States,  the  former  without  the  consent 
of  New  York,  the  latter  with  the  consent  of  Virginia. 
The  third  class  comprehended  the  cessions  which  the 
United  States  in  Congress  were  then  endeavoring  to 
obtain  from  the  States  of  North  Carolina,  South 
Carolina,  and  Georgia,  and  in  which  were  afterwards 
established  the  States  of  Tennessee,  Mississippi,  and 
Alabama.1  These  cessions,  as  it  then  appeared, 


1 The  cession  by  South  Carolina 
of  all  its  “ right,  title,  interest,  ju- 
risdiction, and  claim  ” to  the  “ ter- 
ritory or  tract  of  country”  lying, 
rvithin  certain  northern  and  south- 
ern limits,  between  the  western 
boundary  of  that  State  and  the 
river  Mississippi,  was  in  fact  made 
and  accepted  in  Congress,  August 


D - 1 0, 1 78  7,  twenty  days  before  the 
territorial  clause  was  finally  settled 
in  the  Convention,  which  took  place 
August  30.  (Journals  of  the  Old 
Congress,  XII.  129-139.  Madi- 
son, Elliot,  V.  494-497.)  On  the 
20th  of  October  of  the  same  year, 
the  Congress  passed  a resolution 
urging  the  States  of  North  Carolina 


Ch.  XI.] 


POWER  OYER  TERRITORIES. 


357 


• might  or  might  not  all  be  made.  If  made,  the  title 
of  the  United  States  to  the  unoccupied  lands  would 
be  complete,  resting  both  upon  the  cessions  and  up- 
on the  treaty  of  peace  with  England ; and  the  polit- 
ical jurisdiction  over  the  existing  settlements,  as  well 
as  oyer  the  whole  territory,  would  be  transferred  with 
the  cessions,  subject  to  any  conditions  which  the 
ceding  States  might  annex  to  their  grants.  If  the 
cessions  should  not  be  made,  the  claims  of  the  United 
States  to  the  unoccupied  lands  would  stand  upon  the 
treaty  of  peace,  and  would  require  to  be  saved  by 
some  clause  in  the  Constitution  which  should  signify 
that  they  were  not  surrendered ; while  the  claims  of 
the  respective  States  would  require  to  be  protected 
in  like  manner. 

The  reader  will  now  be  prepared  to  understand 
the  following  explanation  of  the  third  section  of  the 
fourth  article  of  the  Constitution.  First,  with  ref- 
erence to  the  Northwestern  Territory,  the  soil  and 
jurisdiction  of  which  was  already  completely  vested 
in  the  United  States,  it  was  necessary  that  the  Con- 
stitution should  confer  upon  Congress  power  to  ex- 
ercise the  political  jurisdiction  of  the  United  States, 
power  to  dispose  of  the  soil,  and  power  to  admit  new 
States  that  might  be  formed  there  into  the  Union. 
Secondly,  with  reference  to  such  cases  as  that  of 
Vermont,  it  was  necessary  that  there  should  be  a 

and  Georgia  to  cede  their  "Western  cession  of  North  Carolina  was  made 
claims.  This  request  was  not  com-  February  25,  1790;  that  of  Geor- 
plied  with  until  after  the  Constitu-  gia,  April  24,  1802. 
tion  had  gone  into  operation.  The 


358  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

power  to  admit  new  States  into  the  Union  without 
requiring  the  assent  of  any  other  State,  when  such 
new  States  were  not  formed  within  the  actual  juris- 
diction of  any  other  State.  Thirdly,  with  reference 
to  such  cases  as  that  of  Kentucky,  which  would  be 
formed  within  the  actual  jurisdiction  of  another  State, 
it  was  necessary  that  the  power  to  admit  should  be 
qualified  by  the  condition  of  the  consent  of  that  State. 
Fourthly,  with  reference  to  such  cessions  as  were 
expected  to  be  made  by  North  Carolina,  South  Caro- 
lina, and  Georgia,  it  was  necessary  to  provide  the 
power  of  political  government,  the  power  to  admit 
into  the  Union,  and  the  power  to  dispose  of  the  soil, 
if  the  cessions  should  be  made ; and  at  the  same  time 
to  save  the  claims  of  the  United  States  and  of  the  re- 
spective States  as  they  then  stood,  if  the  cessions  an- 
ticipated should  not  be  made.  None  of  these  cases, 
however,  were  specifically  mentioned  in  the  Consti- 
tution, but  general  provisions  were  made,  which  were 
adapted  to  meet  the  several  aspects  of  these  cases. 
From  the  generality  of  these  provisions,  it  is  held  by 
some  that  the  clause  which  relates  to  “ the  territory 
or  other  property  of  the  United  States,”  was  intended 
to  be  applied  to  all  cessions  of  territory  that  might 
ever  be  made  to  the  United  States,  as  well  as  to  those 
which  had  been  made,  or  which  were  then  specially 
anticipated ; while  others  give  to  the  clause  a much 
narrower  application.1 


1 It  is  not  my  purpose  to  enter  fessionally  to  maintain  that  the  ter- 
into  the  argument  on  this  question.  ritorial  clause  is  applicable  to  all  ter- 
I have  recently  had  occasion  pro-  ritorial  cessions  made  to  the  United 


Ch.  XI.] 


RESTRAINTS  UPON  CONGRESS. 


359 


There  now  remain  to  be  considered  the  restraints 
imposed  upon  the  exercise  of  the  powers  of  Congress, 
both  within  the  States  and  in  all  other  places ; both 
where  the  authority  of  the  United  States  is  limited 
to  certain  special  objects,  and  where  it  is  unlimited 
and  universal,  excepting  so  far  as  it  is  narrowed  by 
these  constitutional  restraints.  Some  of  them  I 


have  already  described,  in  tracing  the  manner  in 
which  they  were  introduced  into  the  Constitution. 
We  have  seen  how  far  the  commercial  and  revenue 
powers  became  limited  in  respect  to  the  slave-trade, 
to  taxes  on  exports,  to  preferences  between  the  ports 
of  different  States,  and  to  the  levying  of  capitation 
or  other  direct  taxes.  These  restrictions  were  ap- 
plicable to  these  special  powers.  But  others  were 
introduced,  which  apply  to  the  exercise  of  all  the 
powers  of  Congress,  and  are  in  the  nature  of  limita- 
tions upon  its  general  authority  as  a government. 

One  of  these  is  embraced  in  the  provision,  “ that 
the  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or 
invasion,  the  public  safety  may  require  it.”  1 The 
common  law  of  England,  which  recognizes  the  right 
to  the  writ  of  habeas  corpus  for  the  purpose  of  deliv- 


States,  whether  by  States  of  the 
Union  or  by  foreign  States,  and  that 
it  clothes  the  government  with  a full 
legislative  power  over  such  territo- 
ries and  their  inhabitants,  which  is 
subject  only  to  the  particular  restric- 
tions enumerated  in  the  Constitu- 
tion, or  provided  for  in  the  cessions. 
Perhaps  it  is  needless  for  me  to  add 


that  I entertain  this  opinion.  But 
it  is  rejected  by  others,  and,  in  the 
present  state  of  judicial  interpre- 
tation of  this  part  of  the  Consti- 
tution, by  the  supreme  tribunal,  it 
is  not  easy  to  determine  what  will 
finally  become  the  settled  construc- 
tion. 

1 Constitution,  Art.  I.  § 9,  cl.  2. 


360 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ery  from  illegal  imprisonment  or  restraint,  was  the 
law  of  each  of  the  American  States ; and  it  appears 
from  the  proceedings  of  the  Convention  to  have  been 
the  purpose  of  this  provision  to  recognize  this  right, 
in  the  relations  of  the  people  of  the  States  to  the 
general  government,  and  to  secure  and  regulate  it. 
The  choice  lay  between  a declaration  of  the  existence 
of  the  right,  making  it  inviolable  and  absolute,  under 
all  circumstances,  and  a recognition  of  its  existence 
by  a provision  which  would  admit  of  its  being  sus- 
pended in  certain  emergencies.  The  latter  course 
was  adopted,  although  three  of  the  States  recorded 
their  votes  against  the  exception  of  cases  of  rebellion 
or  invasion.1 

The  prohibition  upon  Congress  to  pass  bills  of  at- 
tainder, or  ex  post  facto  laws,  came  into  the  Consti- 
tution at  a late  period,  and  while  the  first  draft  of  it 
was  under  consideration.  Bills  of  attainder,  in  the 
jurisprudence  of  the  common  law,  are  acts  of  legis- 
lation inflicting  punishment  without  a judicial  trial. 
The  proposal  to  prohibit  them  was  received  in  the 
Convention  with  unanimous  assent.  With  regard 
to  the  other  class  of  legislative  acts,  described  as  “ ex 
post  facto  laws,”  there  was  some  difference  of  opinion, 
in  consequence  probably  of  different  views  of  the  ex- 
tent of  the  term.  In  the  common  law,  this  expres- 
sion included  only,  then  and  since,  laws  which  punish 
as  crimes  acts  which  were  not  punishable  as  crimes 
when  they  were  committed.  Laws  of  a civil  nature, 

1 See  Elliot,  V.  484.  The  three  States  were  North  Carolina,  South 
Carolina,  and  Georgia. 


Ch.  XI.] 


EX  POST  FACTO  LAWS. 


361 


retrospective  in  their  operation  upon  the  civil  rights 
and  relations  of  parties,  were  not  embraced  by  this 
term,  according  to  the  definition  of  English  jurists. 
But  it  is  manifest  from  what  was  said  by  different 
members,  that,  at  the  time  when  the  vote  was  taken 
which  introduced  this  clause  into  the  Constitution, 
the  expression  “ ex  post  facto  laws  ” was  taken  in  its 
widest  sense,  embracing  all  laws  retrospective  in  their 
operation.  It  was  objected,  therefore,  that  the  pro- 
hibition was  unnecessary,  since,  upon  the  first  prin- 
ciples of  legislation,  such  laws  are  void  of  themselves, 
without  any  constitutional  declaration  that  they  are 
so.  But  experience  had  proved  that,  whatever  might 
be  the  principles  of  civilians  respecting  such  laws, 
the  State  legislatures  had  passed  them,  and  they  had 
been  acted  on.  A large  majority  of  the  Convention 
determined,  therefore,  to  place  this  restraint  upon  the 
national  legislature,  and  at  the  time  of  the  vote  I 
think  it  evident  that  all  retrospective  laws,  civil  as 
well  as  criminal,  were  understood  to  be  included.1 
But  when  the  same  restraint  came  afterwards  to  be 
imposed  upon  the  State  legislatures,  the  attention  of 
the  assembly  was  drawn  to  the  distinction  between 
criminal  laws  and  laws  relating  to  civil  interests.  In 
order  to  reach  and  control  retrospective  laws  operat- 
ing upon  the  civil  rights  of  parties,  when  passed  by  a 
State,  a special  description  was  employed  to  designate 
them,  as  “ laws  impairing  the  obligation  of  contracts,” 
and  the  term  “ ex  post  facto  laws  ” was  thus  confined 
to  laws  creating  and  punishing  criminal  offences  after 

l Elliot,  Y.  462,  463. 

46 


VOL.  II. 


362 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  acts  had  been  committed.1  What  is  now  the  set- 
tled construction  of  this  term,  therefore,  is  in  accord- 
ance with  the  sense  in  which  it  was  finally  intended 
to  be  used  by  the  framers  of  the  Constitution  before 
the  instrument  passed  from  their  hands. 

The  committee  of  detail  had  reported  in  their  draft 
of  the  Constitution  a clause  which  restrained  the 
United  States  from  granting  any  title  of  nobility. 
The  Convention,  for  the  purpose  of  preserving  all 
officers  of  the  United  States  independent  of  external 
influence,  added  to  this  a provision  that  no  person 
holding  an  office  of  profit  or  trust  under  the  United 
States  shall,  without  the  consent  of  Congress,  accept 
of  any  present,  emolument,  office,  or  title,  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  state.2 

In  addition  to  the  special  powers  conferred  by  the 
Constitution  upon  the  national  government,  it  has 
imposed  certain  restraints  on  the  political  power  of 
the  States,  which  qualify  and  diminish  what  would 
otherwise  be  the  unlimited  sovereignty  of  each  of 
them.  These  restraints  are  of  two  classes ; — a part 
of  them  being  designed  to  remove  all  obstructions 
that  might  be  placed  by  State  legislation  or  action  in 
the  way  of  the  appropriate  exercise  of  the  powers 
vested  in  the  United  States,  and  a part  of  them  being 
intended  to  assimilate  the  nature  of  the  State  gov- 
ernments to  that  of  the  Union,  by  the  application  of 
certain  maxims  or  rules  of  public  policy.  These  re- 
straints may  now  be  briefly  examined,  with  reference 
to  this  classification. 

1 Elliot,  V.  488.  2 Ibid.  467.  Constitution,  Art.  I.  § 9,  cl.  8. 


Ch.  XI.] 


EESTEAINTS  UPON  THE  STATES. 


363 


The  idea  of  imposing  special  restrictions  upon  the 
power  of  the  separate  States  was  not  expressly  em- 
braced in  the  plan  of  government  described  by  the 
resolutions  on  which  the  committee  of  detail  were 
instructed  to  prepare  the  instrument  of  government. 
Such  restrictions,  however,  were  not  unknown  to 
the  previous  theory  of  the  Union.  They  existed  in 
the  Articles  of  Confederation,  where  they  had  been 
introduced  with  the  same  general  purpose  of  with- 
drawing from  the  action  of  the  States  those  objects, 
which,  by  the  stipulations  of  that  instrument,  had 
been  committed  to  the  authority  of  the  United 
States  in  Congress.  But  the  inefficacy  of  those 
provisions  lay  in  the  fact,  that  they  were  the  mere 
provisions  of  a theory.  The  step  now  proposed  to 
be  taken  was  to  superadd  to  the  prohibitions  them- 
selves the  principle  of  their  supremacy  as  matters 
of  fundamental  law,  and  to  enable  the  national  ju- 
diciary to  make  that  supremacy  effectual. 

Almost  all  the  restraints  imposed  by  the  Articles 
of  Confederation  upon  the  States  could  be  removed 
or  relaxed  by  the  consent  of  the  Congress  to  the  do- 
ing of  what  was  otherwise  prohibited.  In  the  first 
draught  of  the  Constitution,  the  committee  of  de- 
tail inserted  four  absolute  prohibitions,  which  could 
not  be  removed  by  Congress  itself.  These  related 
to  the  coining  of  money,  the  granting  of  letters  of 
marque  and  reprisal,  the  making  of  treaties,  alli- 
ances, and  confederations,  and  the  granting  of  titles 
of  nobility.  All  the  other  restraints  on  the  States 
were  to  be  operative  or  inoperative,  according  to 


364  FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 

the  pleasure  of  Congress.1  Among  these  were  in- 
cluded bills  of  credit ; laws  making  other  things 
than  specie  a tender  in  payment  of  debts ; the  lay- 
ing of  imposts  or  duties  on  imports ; the  keeping  of 
troops  or  ships  of  war  in  time  of  peace ; the  enter- 
ing into  agreements  or  compacts  with  other  States, 
or  with  foreign  powers ; and  the  engaging  in  war, 
when  not  invaded,  or  in  danger  of  invasion  before 
Congress  could  be  consulted.  The  enactment  of 
attainder  and  ex  post  facto  laws,  and  of  laivs  im- 
pairing the  obligation  of  contracts,  was  not  pro- 
hibited at  all. 

But  when  these  various  subjects  came  to  be  re- 
garded more  closely,  it  was  perceived  that  the  list 
of  absolute  prohibitions  must  be  considerably  en- 
larged. Thus  the  power  of  emitting  bills  of  credit, 
which  had  been  the  fruitful  source  of  great  evils, 
must  either  be  taken  away  entirely,  or  the  contest 
between  the  friends  and  the  opponents  of  paper 
money  would  be  transferred  from  the  State  legis- 
latures to  Congress,  if  Congress  should  be  author- 
ized to  sanction  the  exercise  of  the  power.  Fears 
were  entertained  that  an  absolute  prohibition  of 
paper  money  would  excite  the  strenuous  opposition 
of  its  partisans  against  the  Constitution ; but  it  was 
thought  best  to  take  this  opportunity  to  crush  it 
entirely ; and  accordingly  the  votes  of  all  the  States 
but  two  were  given  to  a proposition  to  prohibit  ab- 
solutely the  issuing  of  bills  of  credit.2  To  the  same 

i Articles  XII.,  XIII.  of  the  first 

draft,  Elliot,  V.  381. 


2 Elliot,  Y.  484,  485. 


Ch.  XI.J 


OBLIGATION  OF  CONTRACTS. 


365 


class  of  legislation  belonged  the  whole  of  that  system 
of  laws  by  which  the  States  had  made  a tender  of 
certain  other  things  than  coin  legal  satisfaction  of  a 
debt.  By  placing  this  class  of  laws  under  the  ban 
of  a strict  prohibition,  not  to  be  removed  by  the 
consent  of  Congress  in  any  case,  the  mischiefs  of 
which  they  had  been  a fruitful  source  would  be  at 
once  extinguished.  This  was  accordingly  done,  by 
unanimous  consent.1 

At  this  point,  the  kindred  topic  of  the  obligation 
of  contracts  presented  itself  to  the  mind  of  Rufus 
King,  suggested  doubtless  by  a provision  in  the 
Ordinance  then  recently  passed  by  Congress  for  the 
government  of  the  Northwestern  Territory.2  The 
idea  of  a special  restraint  on  legislative  power,  for 
the  purpose  of  rendering  inviolate  the  obligation  of 
contracts,  appears  to  have  originated  with  Nathan 
Dane,  the  author  of  that  Ordinance.  It  was  not 
embraced  in  the  resolve  of  1784,  reported  by  Mr. 
Jefferson,  which  contained  the  first  scheme  adopted 
by  Congress  for  the  establishment  of  new  States  in 
the  Northwestern  Territory  ; and  it  first  appears 
in  our  national  legislation  in  the  Ordinance  of 
1787.  Its  transfer  thence  into  the  Constitution  of 
the  United  States  was  a measure  of  obvious  ex- 

1 Elliot,  V.  484,  485.  gust  28,  and  is  described  by  Mr. 

2 The  Ordinance,  which  was  Madison  as  a motion  “to  add,  in 
passed  July  13,  was  published  at  the  words  used  in  the  Ordinance 
length  in  “ The  Pennsylvania  Her-  of  Congress  establishing  new  States, 
aid,”  a newspaper  printed  at  Phila-  a prohibition  on  the  States  to  inter- 
delphia,  on  the  25th  of  July  (1 787).  fere  in  private  contracts.”  Elliot, 
Mr.  King’s  motion  was  made  Au-  Y.  485. 


366  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

pediency,  and  indeed  of  clear  necessity.  In  the 
Ordinance,  Congress  had  provided  a system  of  fun- 
damental law,  intended  to  be  of  perpetual  obliga- 
tion, for  new  communities,  whose  legislative  power 
was  to  be  moulded  by  certain  original  maxims  of 
assumed  justice  and  right.  The  opportunity  thus 
afforded  for  shaping  the  limits  of  political  sovereign- 
ty according  to  the  requirements  of  a preconceived 
policy,  enabled  the  framers  of  the  Ordinance  to  in- 
troduce a limitation,  which  is  not  only  peculiar  to 
American  constitutional  law,  but  which,  like  many 
features  of  our  institutions,  grew  out  of  previous 
abuses. 

In  the  old  States  of  the  Confederacy,  from  the 
time  when  they  became  self-governing  communities, 
the  power  of  a mere  majority  had  been  repeatedly 
exercised  in  legislation,  without  any  regard  to  its 
effect  on  the  civil  rights  and  remedies  of  parties  to 
existing  contracts.  The  law  of  debtor  and  creditor 
was  not  only  subjected  to  constant  changes,  but  the 
nature  of  the  change  depended  in  many  of  the  States 
upon  the  will  of  the  debtor  class,  who  formed  the 
governing  majority.  So  pressing  were  the  evils 
thus  engendered,  that,  when  the  framers  of  the 
Ordinance  came  to  provide  for  the  political  exist- 
ence of  communities  whose  institutions  they  were 
to  dictate,  they  determined  to  impose  an . effectual 
restraint  on  legislative  power ; and  they  accordingly 
provided,  in  terms  much  more  stringent  than  were 
afterwards  employed  in  the  Constitution,  that  no 
law  should  have  effect  in  the  Territory  which  should 


Ch.  XI.] 


OBLIGATION  OF  CONTRACTS. 


367 


in  any  manner  whatever  interfere  with  or  affect  pri- 
vate contracts  or  engagements  previously  made.1 

The  framers  of  the  Constitution  were  not  engaged 
in  the  same  work  of  creating  new  political  societies, 
but  they  were  to  provide  for  such  surrenders  by  ex- 
isting States  of  their  present  unquestioned  legislative 
authority,  as  the  dictates  of  sound  policy  and  the 
evils  of  past  experience  seemed  to  require.  When 
this  subject  was  first  brought  forward  in  the  Con- 
vention, the  restriction  was  made  to  embrace  all 
retrospective  laws  bearing  upon  contracts,  which 
were  supposed  to  be  included  in  the  term  “ ex  post 
facto  laws.”  It  being  ascertained,  however,  that  the 
latter  phrase  would  not,  in  its  usual  acceptation,  ex- 
tend to  civil  cases,  it  became  necessary  to  consider 
how  such  cases  were  to  be  provided  for,  and  how  far 
the  prohibition  should  extend.  The  provision  of  the 
Ordinance  was  regarded  as  too  sweeping ; no  legisla- 
ture., it  was  said,  ever  did  or  can  altogether  avoid 
some  retrospective  action  upon  the  civil  relations  of 
parties  to  existing  contracts,  and  to  require  it  would 
be  extremely  inconvenient.  At  length,  a description 
was  found,  which  embodied  the  extent  to  which  the 
prohibition  could  with  propriety  be  carried.  The 
legislatures  of  the  States  were  restrained  from  pass- 
ing any  “ law  impairing  the  obligation  of  contracts  ” ; 
— a provision  that  has  been  found  amply  sufficient, 
and  attended  with  the  most  salutary  consequences, 
under  the  interpretation  that  has  been  given  to  it.2 

1 See  the  clause  of  the  Ordi-  2 Elliot,  Y.  485,  488,  545, 
nance,  cited  ante,  Vol.  I.  p.  452,  546. 

note  2. 


868 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


Bills  of  attainder  and  ex  ‘post  facto  laws,  which 
had  not  been  included  in  the  prohibitions  on  the 
States  by  the  committee  of  detail,  were  added  by 
the  Convention  to  the  list  of  positive  restrictions, 
which  was  thus  completed. 

In  the  class  of  conditional  prohibitions,  or  those 
acts  which  might  be  done  by  the  States  with  the 
consent  of  Congress,  the  committee  of  detail  had 
placed  the  laying  of  “ imposts  or  duties  on  imports.” 
To  this  the  Convention  added  “ exports,”  in  order  to 
make  the  restriction  applicable  both  to  commodities 
carried  out  of  and  those  brought  into  a State.  But 
this  provision,  as  thus  arranged,  would  obviously 
make  the  commercial  system  extremely  complex 
and  inconvenient.  On  the  one  hand,  the  power  to 
lay  duties  on  imports  had  been  conferred  upon  the 
general  government,  for  the  purposes  of  revenue, 
and  to  leave  the  States  at  liberty,  with  the  consent 
of  Congress,  to  lay  additional  duties,  would  subject 
the  same  merchandise  to  separate  taxation  by  two 
distinct  governments.  On  the  other  hand,  if  the 
States  should  be  deprived  of  all  power  to  lay  duties 
on  exports,  they  would  have  no  means  of  defraying 
the  charges  of  inspecting  their  own  productions. 
At  the  same  time,  it  was  apparent  that,  under  the 
guise  of  inspection  laws,  if  such  laws  Avere  not  to  be 
subject  to  the  revision  of  Congress,  a State  situated 
on  the  Atlantic,  Avith  convenient  seaports,  could  lay 
heavy  burdens  upon  the  productions  of  other  States 
that  might  be  obliged  to  pass  through  those  ports  to 
foreign  markets.  Again,  if  the  States  should  be  de- 


Ch.  XI  ] 


STATE  IMPOSTS. 


369 


prived  of  all  power  to  lay  duties  on  imports,  they 
could  not  encourage  their  own  manufactures ; and 
if  allowed  to  encourage  their  own  manufactures  by 
such  State  legislation,  it  must  operate  not  only  upon 
imports  from  foreign  countries,  but  upon  imports 
from  other  States  of  the  Union,  which  would  revive 
all  the  evils  that  had  flowed  from  the  want  of  gen- 
eral commercial  regulations.  To  prevent  these  vari- 
ous mischiefs,  the  Convention  adopted  three  distinct 
safeguards.  They  provided,  first,  by  an  exception, 
that  the  States  might,  without  the  consent  of  Con- 
gress, lay  such  duties  and  imposts  as  “ may  be  abso- 
lutely necessary  for  executing  their  inspection  laws  ” ; 
second,  that  the  net  produce  of  all  duties  and  imposts 
laid  by  any  State,  whether  with  or  without  the  con- 
sent of  Congress,  shall  be  for  the  use  of  the  Treasury 
of  the  United  States ; third,  that  all  such  State  laws, 
whether  passed  with  or  without  the  previous  consent 
of  Congress,  shall  be  subject  to  the  revision  and  con- 
trol of  Congress.1  There  is,  therefore,  a twofold 
remedy  against  any  oppressive  exercise  of  the  State 
power  to  lay  duties  for  purposes  of  inspection.  The 
question  whether  the  particular  duties  exceed  what 
is  absolutely  necessary  for  the  execution  of  an  in- 
spection law,  may  be  made  a judicial  question;  and 
in  addition  to  this,  the  law  imposing  the  inspection 
duty  is  at  all  times  subject  to  the  revision  and  con- 
trol of  Congress.  Any  tendency  to  lay  duties  or 
imposts  for  purposes  of  revenue  or  protection,  is 
checked  by  the  requirement  that  the  net  produce 

1 Elliot,  V.  479,  484,  486,  502,  538,  539,  540,  545,  548. 
vol.  II.  47 


< 


370  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

of  all  duties  or  imposts  laid  by  any  State  on  imports 
or  exports  shall  be  paid  over  to  the  United  States, 
and  such  tendency  may  moreover  be  suppressed  by 
Congress  at  any  time,  by  the  exercise  of  its  power  of 
revision  and  control. 

In  order  to  vest  the  supervision  and  control  of  the 
whole  subject  of  navigation  in  Congress,  it  was  fur- 
ther provided  that  no  State,  without  the  consent  of 
Congress,  shall  lay  any  duty  of  tonnage.  An  excep- 
tion, proposed  by  some  of  the  Maryland  and  Virginia 
members,  with  a view  to  the  situation  of  the  Chesa- 
peake Bay,  illustrates  the  object  of  this  provision. 
They  desired  that  the  States  might  not  be  restrained 
from  laying  duties  of  tonnage  “for  the  purpose  of 
clearing  harbors  and  erecting  light-houses.”  It  was 
perhaps  capable  of  being  contended,  that,  as  the  reg- 
ulation of  commerce  was  already  agreed  to  be  vested 
in  the  general  government,  the  States  were  restrained 
by  that  general  provision  from  laying  tonnage  duties. 
The  object  of  the  special  restriction  was,  to  make  this 
point  entirely  certain ; and  the  object  of  the  proposed 
exception  was  to  divide  the  commercial  power,  and 
to  give  the  States  a concurrent  authority  to  regulate 
tonnage  for  a particular  purpose.  But  a majority 
of  the  States  considered  the  regulation  of  tonnage 
an  essential  part  of  the  regulation  of  trade.  They 
adopted  the  suggestion  of  Mr.  Madison,  that  the 
regulation  of  commerce  was,  in  its  nature,  indivisi- 
ble, and  ought  to  be  wholly  under  one  authority. 
The  exception  was  accordingly  rejected.1 

1 By  a vote  of  six  States  against  four.  Elliot,  V.  548. 


Ch.  XI.] 


VARIOUS  RESTRAINTS. 


371 


The  same  restriction,  with  the  like  qualification 
of  the  consent  of  Congress,  was  applied  to  the  keep- 
ing of  troops  or  ships  of  war  in  time  of  peace,  enter- 
ing into  agreements  or  compacts  with  another  State 
or  a foreign  power,  or  engaging  in  war,  unless  actu- 
ally invaded  or  in  such  imminent  danger  as  will  not 
admit  of  delay.1 

1 Elliot,  V.  548. 


CHAPTER  XII. 


Report  of  the  Committee  of  Detail,  continued.  — Suprem- 
acy of  the  National  Government.  — Definition  and  Pun- 
ishment of  Treason. 

Among  the  resolutions  sent  to  the  committee,  there 
were  four  which  had  reference  to  the  supremacy  of 
the  government  of  the  United  States.  They  declared 
that  it  ought  to  consist  of  a supreme  legislative,  ex- 
ecutive, and  judiciary; — that  its  laws  and  treaties 
should  be  the  supreme  law  of  the  several  States,  so 
far  as  they  related  to  the  States  or  their  citizens  and 
inhabitants,  and  that  the  judiciaries  of  the  States 
should  be  bound  by  them,  even  against  their  own 
laws ; — that  the  officers  of  the  States,  as  well  as  of 
the  United  States,  should  be  bound  by  oath  to  sup- 
port the  Articles  of  Union ; — and  that  the  question 
of  their  adoption  should  be  submitted  to  assemblies 
of  representatives  to  be  expressly  chosen  by  the  peo- 
ple of  each  State  under  the  recommendation  of  its 
legislature.1 

In  order  to  give  effect  to  these  precise  and  strin- 
gent directions,  the  committee  of  detail  introduced 
into  their  draft  of  a constitution  a preamble ; two 

1 These  were  the  1st,  7th,  20th,  and  21st  of  the  resolutions.  Ante, 
p.  190  el  seq.,  note. 


Ch.  XII.] 


PREAMBLE. 


373 


articles  asserting  and  providing  for  the  supremacy  of 
the  national  government : a provision  for  the  oath  of 
officers  ; and  a declaration  of  the  mode  in  which  the 
instrument  was  intended  to  be  ratified. 

The  preamble  of  the  Constitution,  as  originally 
reported  by  this  committee,  differed  materially  from 
that  subsequently  framed  and  adopted.  It  spoke  in 
the  name  of  the  people  of  the  States  of  New  Hamp- 
shire, Massachusetts,  & c.,  who  were  said  “ to  ordain, 
declare,  and  establish  this  Constitution  for  the  gov- 
ernment of  ourselves  and  our  posterity  ” ; and  it 
stated  no  special  motives  for  its  establishment.  In 
this  form  it  was  unanimously  adopted  on  the  7th  of 
August.  But  when,  at  a subsequent  period,  the  in- 
strument was  sent  to  another  committee,  whose  duty 
it  was  to  revise  its  style  and  arrangement,  this  phra- 
seology was  changed,  and  the  preamble  was  made  to 
speak  in  the  name  of  the  people  of  the  United  States, 
and  to  declare  the  purposes  for  which  they  ordained 
and  established  the  Constitution.1  The  language 
thus  employed  in  the  preamble  has  justly  been  con- 
sidered as  having  an  important  connection  with  the 
provisions  made  for  the  ratification  of  the  instrument 
to  which  it  was  prefixed. 

The  articles  specially  designed  to  assert  and  carry 
out  the  supremacy  of  the  national  government,  as 
they  came  from  the  committee,  embodied  the  resolu- 


1 “ We,  the  people  of  the  United 
States,  in  order  to  form  a more 
perfect  union,  establish  justice,  in- 
sure domestic  tranquillity,  provide 
for  the  common  defence,  promote 


the  general  welfare,  and  secure  the 
blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  estab- 
lish this  Constitution  for  the  United 
States  of  America.” 


374 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tions  on  the  same  subject  which  had  passed  the  Con- 
vention. The  only  material  addition  consisted  in  the 
qualification,  that  the  legislative  acts  of  the  United 
States,  which  were  to  be  the  supreme  law,  were  such 
as  should  be  made  in  pursuance  of  the  Constitution. 
Subsequently,  the  article  was  so  amended  as  to  make 
the  Constitution,  the  laws  passed  in  pursuance  of  it, 
and  the  treaties  of  the  United  States,  the  supreme 
law  of  the  land,  binding  upon  all  judicial  officers.1 

It  is  a remarkable  circumstance,  that  this  provis- 
ion was  originally  proposed  by  a very  earnest  advo- 
cate of  the  rights  of  the  States,  — Luther  Martin. 
His  design,  however,  was  to  supply  a substitute  for 
a power  over  State  legislation,  which  had  been  em- 
braced in  the  Virginia  plan,  and  which  was  to  be 
exercised  through  a negative  by  the  national  legisla- 
ture upon  all  laws  of  the  States  contravening  in 
their  opinion  the  Articles  of  Union,  or  the  treaties 
subsisting  under  the  authority  of  the  Union.2  The 
purpose  of  the  substitute  was  to  change  a legisla- 
tive into  a judicial  power,  by  transferring  from  the 
national  legislature  to  the  judiciary  the  right  of 
determining  whether  a State  law,  supposed  to  be  in 
conflict  with  the  Constitution,  laws,  or  treaties  of  the 
Union,  should  be  inoperative  or  valid.  By  extend- 
ing the  obligation  to  regard  the  requirements  of  the 
national  Constitution  and  laws  to  the  judges  of  the 
State  tribunals,  their  supremacy  in  all  the  judicatures 
of  the  country  was  secured.  This  obligation  was 

1 The  Constitution,  Art.  VI.  2 July  17.  Elliot,  V.  322. 

(See  Appendix.) 


Ch.  XII.] 


RATIFICATION. 


375 


enforced  by  the  oath  or  affirmation  to  support  the 
Constitution  of  the  United  States ; 1 and,  as  we  shall 
see  hereafter,  lest  this  security  should  fail,  the  final 
determination  of  questions  of  this  kind  was  drawn 
to  the  national  judiciary,  even  when  they  might  have 
originated  in  a State  tribunal.2 

Closely  connected  in  purpose  with  these  careful 
provisions  was  the  mode  in  which  the  Constitution 
Avas  to  be  ratified.  The  committtee  of  detail  had 
made  this  the  subject  of  certain  articles  in  the  Con- 
stitution itself.3  But  the  committee  of  revision  after- 
wards presented  certain  resolutions  in  the  place  of 
tAvo  of  those  articles,  which  Avere  adopted  by  the 
Convention  after  the  Constitution  had  been  signed  ; 
leaving  in  the  instrument  itself  nothing  but  the  arti- 
cle Avhich  determined  the  number  of  States  whose 
adoption  ' should  be  sufficient  for  establishing  it.4 
These  resolutions  pursued  substantially  the  mode 
previously  agreed  upon,  of  a transmission  of  the  in- 
strument to  Congress,  a recommendation  by  the  State 
legislatures  to  the  people  to  institute  representative 
assemblies  to  consider  and  decide  on  its  adoption,  and 
a notice  of  their  action  to  Congress  by  each  State  as- 
sembly so  adopting  it.  The  purpose  of  this  form  of 
proceeding,  so  far  as  it  was  connected  Avith  the  pri- 
mary authority  by  Avhich  the  Constitution  was  to  be 
enacted,  has  been  already  explained.5 

1 The  Constitution.  Art.  VI.  4 The  Constitution,  Art.  VII. 

2 Ibid.  Art.  III.  § 2.  5 Ante , p.  177,  et  seq.  The 

3 Articles  XXI.,  XXII.,  XXIII.  resolutions  may  be  found  in  Elliot, 

of  their  draft.  Elliot,  V.  381.  V.  541  (Sept.  13).  But  the  pro- 


376 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


What  then  were  the  meaning  and  scope  of  that 
supremacy  which  the  framers  of  the  Constitution  de- 
signed to  give  to  the  acts  of  the  government  which 
they  constructed'? 

In  seeking  an  answer  to  this  question,  it  is  neces- 
sary to  recur,  as  we  have  constantly  been  obliged  to 
do,  to  the  nature  of  the  government  which  the  Con- 
stitution was  made  to  supersede.  In  that  system,  the 
experiment  had  been  tried  of  a union  of  States,  — 
each  possessed  of  a complete  government  of  its  own, 
— which  was  intended  to  combine  their  several  ener- 
gies for  the  common  defence  and  the  promotion  of 
the  general  welfare.  But  this  combined  will  of  dis- 
tinct communities,  expressed  through  the  action  of  a 
common  agent,  was  wholly  unable  to  overcome  the 
adverse  will  of  any  of  them  expressed  by  another  and 
separate  agent,  although  the  objects  of  the  powers 
bestowed  on  the  confederacy  were  carefully  stated 
and  sufficiently  defined  in  a public  compact.  Thus, 
for  example,  the  treaty-making  power  was  expressly 
vested  in  the  United  States  in  Congress  assembled ; 
but  when  a treaty  had  been  made,  it  depended  en- 
tirely upon  the  separate  pleasure  of  each  State 
whether  it  should  be  executed.  If  the  State  govern- 


ceedings  on  them  are  not  found  in 
Mr.  Madison’s  Minutes,  or  in  the 
Journal  of  the  Convention.  The 
official  record  of  their  unanimous 
adoption  was  laid  before  Congress 
on  the  28th  of  September,  178", 
and  it  bears  date  September  17th. 
It  recites  the  presence  in  Conven- 
tion of  all  the  States  that  attended 


excepting  New  York,  and  in  the 
plape  of  that  State  stands  “Mr. 
Hamilton  from  New  York.”  This 
record  precedes  the  official  letter 
addressed  by  the  Convention  to 
Congress.  See  Journals  of  Con- 
gress for  September  28,  1787,  Vol. 
XII.  pp.  149  - 165. 


Ch.  XII.] 


SUPREMACY. 


377 


ments  did  not  see  fit  to  enforce  its  provisions  upon 
their  own  citizens,  or  thought  proper  to  act  against 
them,  there  was  no  remedy,  both  because  the  Con- 
gress could  not  legislate  to  control  individuals,  and 
because  there  was  no  department  clothed  with  author- 
ity to  compel  individuals  to  conform  their  conduct 
to  the  requirements  of  the  treaty,  and  to  disregard  the 
opposing  will  of  the  State. 

This  defect  was  now  to  be  supplied,  by  giving  to 
the  national  authority,  not  only  theoretically  but 
practically,  a supremacy  over  the  authority  of  each 
State.  But  this  was  not  to  be  done  by  annihilating 
the  State  governments.  The  government  of  every 
State  was  to  be  preserved ; and  so  far  as  its  original 
powers  were  not  to  be  transferred  to  the  general  gov- 
ernment, its  authority  over  its  own  citizens  and  with- 
in its  own  territory  must,  from  the  nature  of  politi- 
cal sovereignty,  be  supreme.  There  were,  therefore, 
to  be  two  supreme  powers  in  the  same  country,  op- 
erating upon  the  same  individuals,  and  both  pos- 
sessed of  the  general  attributes  of  sovereignty.  In 
what  way,  and  in  what  sense,  could  one  of  them  be 
made  paramount  over  the  other  1 

It  is  manifest  that  there  cannot  be  two  supreme 
powers  in  the  same  community,  if  both  are  to  oper- 
ate upon  the  same  objects.  But  there  is  nothing  in 
the  nature  of  political  sovereignty  to  prevent  its  pow- 
ers from  being  distributed  among  different  agents  for 
different  purposes.  This  is  constantly  seen  under 
the  same  government,  when  its  legislative,  executive, 
and  judicial  powers  are  exercised  through  different 

TOL.  II.  48 


378 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


officers ; and  in  truth,  when  we  come  to  the  law- 
giving  power  alone,  as  soon  as  we  separate  its  objects 
into  different  classes,  it  is  obvious  that  there  may  be 
several  enacting  authorities,  and  yet  each  may  be  su- 
preme over  the  particular  subject  committed  to  it  by 
the  fundamental  arrangements  of  society.  Supreme 
laws,  emanating  from  separate  authorities,  may  and 
do  act  on  different  objects  without  clashing,  or  they 
may  act  on  different  parts  of  the  same  object  with 
perfect  harmony.  They  are  inconsistent  when  they 
are  aimed  at  each  other,  or  at  the  same  indivisible 
object.1  When  this  takes  place,  one  or  the  other 
must  yield ; or,  in  other  terms,  one  of  them  ceases  to 
be  supreme  on  the  particular  occasion.  It  was  the 
purpose  of  the  framers  of  the  Constitution  of  the 
United  States  to  provide  a paramount  rule,  that 
would  determine  the  occasions  on  which  the  author- 
ity of  a State  should  cease  to  be  supreme,  leaving 
that  of  the  United  States  unobstructed.  Certain 
conditions  were  made  necessary  to  the  operation  of 
this  rule.  The  State  law  must  conflict  with  some 
provision  of  the  Constitution  of  the  United  States,  or 
with  a law  of  the  United  States  enacted  in  pursuance 
of  the  constitutional  authority  of  Congress,  or  with 
a treaty  duly  made  by  the  authority  of  the  Union. 
The  operation  of  this  rule  constitutes  the  supremacy 
of  the  national  government.  It  was  supposed  that, 
by  a careful  enumeration  of  the  objects  to  which  the 
national  authority  was  to  extend,  there  would  be  no 

1 See  a speech  made  by  Hamilton  in  the  Convention  of  New  York. 
Works,  II.  462. 


Ch.  XII.] 


SUPKEMACY. 


379 


uncertainty  as  to  the  occasions  on  which  the  rule 
was  to  apply ; and  as  all  other  objects  were  to  remain 
exclusively  subject  to  the  authority  of  the  States 
within  their  respective  territorial  limits,  the  opera- 
tion of  the  rule  was  carefully  limited  to  those  occa- 
sions. 

The  highly  complex  character  of  a system  in  which 
the  duties  and  rights  of  the  citizen  are  thus  governed 
by  distinct  sovereignties,  would  seem  to  render  the 
administration  of  the  central  power  — surrounded 
as  it  is  by  jealous  and  vigilant  local  governments  — 
an  exceedingly  difficult  and  delicate  task.  Its  situ- 
ation is  without  an  exact  parallel  in  any  other  coun- 
try in  the  world.  But  it  possesses  the  means  which 
no  government  of  a purely  federal  character  has  ever 
enjoyed,  of  an  exact  determination  by  itself  of  its  own 
powers ; because  every  conflict  between  its  authority 
and  the  authority  of  a State  may  be  made  a judicial 
question,  and  as  such  is  to  he  solved  by  the  judicial 
department  of  the  nation.  This  peculiar  device  has 
enabled  the  government  of  the  United  States  to  act 
successfully  and  safely.  Without  it,  each  State  must 
have  been  left  to  determine  for  itself  the  boundaries 
between  its  own  powers  and  those  of  the  Union;  and 
thus  there  might  have  been  as  many  different  determi- 
nations on  the  same  question  as  the  number  of  the 
States.  At  the  same  time,  this  very  diversity  of  in- 
terpretation would  have  deprived  the  general  govern- 
ment of  all  power  to  enforce,  or  even  to  have,  an  in- 
terpretation of  its  own.  Such  a confused  and  chaotic 
condition  had  marked  the  entire  history  of  the  Con- 


380 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


federation.  It  was  terminated  with  the  existence  of 
that  political  system,  by  the  establishment  of  the  rule 
which  provides  for  the  supremacy  of  the  Constitu- 
tion of  the  United  States,  and  by  making  one  final 
arbiter  of  all  questions  arising  under  it. 

By  means  of  this  skilful  arrangement,  a govern- 
ment, in  which  the  singular  condition  is  found  of 
separate  duties  prescribed  to  the  citizen  by  two 
distinct  sovereignties,  has  operated  with  success. 
That  success  is  to  be  measured  not  wholly,  or 
chiefly,  by  the  diversities  of  opinion  on  constitu- 
tional questions  that  may  from  time  to  time  pre- 
vail ; nor  by  the  means,  aside  from  the  Constitution, 
that  may  sometimes  have  been  thought  of  for  coun- 
teracting its  declared  interpretation ; but  by  the  prac- 
tical efficiency  with  which  the  powers  of  the  Union 
have  operated,  and  the  general  readiness  to  acquiesce 
in  the  limitations  given  to  those  powers  by  the  de- 
partment in  which  their  construction  is  vested.  This 
general  acquiescence  has  steadily  increased,  from  the 
period  when  the  government  was  founded  until  the 
present  day ; and  it  has  now  come  to  be  well  under- 
stood, that  there  is  no  alternative  to  take  the  place 
of  a ready  submission  to  the  national  will,  as  ex- 
pressed by  or  under  the  Constitution  interpreted  by 
the  proper  national  organ,  excepting  a resort  to 
methods  that  lie  wholly  Avithout  the  Constitution, 
and  that  would  completely  subvert  the  principles 
on  which  it  was  founded.  For  while  it  is  true 
that  the  people  of  each  State  constitute  the  sover- 
eign power  by  which  the  rights  and  duties  of  its 


Ch.  XII  ] 


SUPREMACY. 


381 


inhabitants  not  involved  in  the  Constitution  of  the 
United  States  are  to  be  exclusively  governed,  it  is 
equally  true  that  they  do  not  constitute  the  whole 
of  the  sovereign  power  which  governs  those  rela- 
tions of  its  inhabitants  that  are  committed  to  the 
national  legislature.  The  framers  of  the  Constitu- 
tion resorted  to  an  enactment  of  that  instrument 
by  the  people  of  the  United  States,  and  employed 
language  which  speaks  in  their  name,  for  the  ex- 
press purpose,  among  other  things,  of  bringing  into 
action  a national  authority,  on  certain  subjects.  The 
organs  of  the  general  government,  therefore,  are  not 
the  agents  of  the  separate  will  of  the  people  of  each 
State,  for  certain  specified  purposes,  as  its  State  gov- 
ernment is  the  agent  of  their  separate  will  for  all 
other  purposes ; but  they  are  the  agents  of  the  will 
of  a collective  people,  of  which  the  inhabitants  of  a 
State  are  only  a part.  That  the  will  of  the  whole 
should  not  be  defeated  by  the  will  of  a part,  was  the 
purpose  of  the  supremacy  assigned  to  the  Constitu- 
tion of  the  United  States ; and  that  the  rights  and 
liberties  of  each  part,  not  subject  to  the  will  of  the 
whole,  should  not  be  invaded,  was  the  purpose  of 
the  careful  enumeration  of  the  objects  to  which  that 
supremacy  was  to  extend. 

In  this  supremacy  of  the  national  government 
within  its  proper  sphere,  and  in  the  means  which 
were  devised  for  giving  it  practical  efficiency,  we  are 
to  look  for  the  chief  cause  that  has  given  to  our 
system  a capacity  of  great  territorial  extension.  It  is 
a system  in  which  a few  relations  of  the  inhabitants 


382 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  distinct  States  are  confided  to  the  care  of  a cen- 
tral authority ; while,  for  the  purpose  of  securing 
the  uniform  operation  of  certain  principles  of  justice 
and  equality  throughout  the  land,  particular  re- 
straints are  imposed  on  the  power  of  the  States. 
With  these  exceptions,  the  several  States  remain 
free  to  pursue  such  systems  of  legislation  as  in 
their  own  judgment  will  best  promote  the  interest 
and  welfare  of  their  inhabitants.  Such  a division 
of  the  political  powers  of  society  admits  of  the 
union  of  far  greater  numbers  of  people  and  com- 
munities, than  could  be  provided  for  by  a single 
representative  government,  or  by  any  other  system 
than  a vigorous  despotism.  Many  of  the  wisest  of 
the  statesmen  of  that  period,  as  we  now  know,  en- 
tertained serious  doubts  whether  the  country  em- 
braced by  the  thirteen  original  States  would  not 
be  too  large  for  the  successful  operation  of  a repub- 
lican government,  having  even  so  few  objects  com- 
mitted to  it  as  were  proposed  to  be  given  to  the 
Constitution  of  the  United  States.  If  those  objects 
had  been  made  to  embrace  all  the  relations  of  social 
life,  it  is  extremely  probable  that  the  original  limits 
of  the  Union  would  have  far  exceeded  the  capacities 
of  a republican  and  representative  government,  even 
if  the  first  difficulties  arising  from  the  differences  of 
manners,  institutions,  and  local  laws  could  have  been 
overcome. 

But  these  very  differences  may  be,  and  in  fact  have 
been,  made  a means  of  vast  territorial  expansion,  by 
the  aid  of  a principle  which  has  been  placed  at  the 


Ch.  XII.] 


GEOWTH  OF  THE  UNION. 


383 


foundation  of  the  American  Union.  Let  a number 
of  communities  be  united  under  a system  which  em- 
braces the  national  relations  of  their  inhabitants,  and 
commits  a limited  number  of  the  objects  of  legislation 
to  the  central  organs  of  a national  will,  leaving  their 
local  and  domestic  concerns  to  separate  and  local 
authority,  and  the  growth  of  such  a nation  may  be 
limited  only  by  its  position  on  the  surface  of  the 
earth.  The  ordinary  obstacles  arising  from  distance, 
and  the  physical  features  of  the  country,  may  be  at 
once  overcome  for  a large  part  of  the  purposes  of 
government,  by  this  division  of  its  authority.  The 
wants  and  interests  of  civilized  life,  modified  into 
almost  endless  varieties,  by  climate,  by  geographical 
position,  by  national  descent,  byoccupation,  by  he- 
reditary customs,  and  by  the  accidental  relations  of 
different  races,  may  in  such  a state  of  things  be 
governed  by  legislation  capable  of  exact  adaptation 
to  the  facts  with  which  it  has  to  deal.  In  this  way, 
separate  States  under  the  republican  form  may  be 
multiplied  indefinitely. 

Now  what  is  required  in  order  to  make  such  a 
multiplication  of  distinct  States  at  the  same  time 
a national  growth,  is  the  operation  of  some  principle 
that  will  preserve  their  national  relations  to  the  con- 
trol of  a central  authority.  This  is  effected  by  the 
supremacy  of  the  Constitution  of  the  United  States, 
against  which  no  separate  State  power  can  be  ex- 
erted. This  supremacy  secures  the  republican  form 
of  government,  the  same  general  principles  and 
maxims  of  justice,  and  the  same  limitations  between 


384 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


State  and  national  authority,  throughout  all  the  par- 
ticular communities ; while,  at  the  same  time,  it  reg- 
ulates by  the  same  system  of  legislation,  applied 
throughout  the  whole,  the  rights  and  duties  of  in- 
dividuals that  are  committed  to  the  national  author- 
ity. It  was  for  the  want  of  this  supremacy  and  of 
the  means  of  enforcing  it,  that  the  Confederation, 
and  all  the  other  federal  systems  of  free  government 
known  in  history,  had  failed  to  create  a powerful  and 
effective  nationality ; and  it  is  precisely  this,  which 
has  enabled  the  Constitution  of  the  United  States  to 
do  for  the  nation  what  all  other  systems  of  free  gov- 
ernment had  failed  to  accomplish. 

In  this  connection,  it  seems  proper  to  state  the 
origin  and  purpose  of  that  definition  of  treason 
which  is  found  in  the  Constitution,  and  which  was 
placed  there  in  order,  on.  the  one  hand,  to  defend  the 
supremacy  of  the  national  government,  and  on  the 
other,  to  guard  the  liberty  of  the  citizen  against  the 
mischiefs  of  constructive  definitions  of  that  crime. 
No  instructions  had  been  given  to  the  committee 
of  detail  on  this  subject.  They,  however,  deemed 
it  necessary  to  make  some  provision  that  would  as- 
certain what  should  constitute  treason  against  the 
United  States.  They  resorted  to  the  great  English 
statute  of  the  25th  Edward  III. ; and  from  it  they 
selected  two  of  the  offences  there  defined  as  trea- 
son, which  were  alone  applicable  to  the  nature  of 
the  sovereignty  of  the  United  States.  The  statute, 
among  a variety  of  other  offences,  denominates  as 
treason  the  levying  of  war  against  the  king  in  his 


Ch.  XII.] 


TREASON. 


385 


realm,  and  the  adhering  to  the  king’s  enemies  in  his 
realm,  giving  them  aid  and  comfort  in  the  realm,  or 
elsewhere.1  The  levying  of  war  against  the  govern- 
ment, and  the  adhering  to  the  public  enemy,  giving 
him  aid  and  comfort,  were  crimes  to  which  the  gov- 
ernment of  the  United  States  would  be  as  likely  to 
be  exposed  as  any  other  sovereignty ; and  these  of- 
fences would  tend  directly  to  subvert  the  government 
itself.  But  to  compass  the  death  of  the  chief  magis- 
trate, to  counterfeit  the  great  seal  or  the  coin,  or  to 
kill  a judge  when  in  the  exercise  of  his  office,  how- 
ever necessary  to  be  regarded  as  treason  in  England, 
were  crimes  which  would  have  no  necessary  tendency 
to  subvert  the  government  of  the  United  States,  and 
which  could  therefore  be  left  out  of  the  definition  of 
treason,  to  be  punished  according  to  the  separate 
nature  and  effects  of  each  of  them.  The  committee 
accordingly  provided  that  “ treason  against  the  Unit- 
ed States  shall  consist  only  in  levying  war  against 
the  United  States,  or  any  of  them ; and  in  adher- 
ing to  the  enemies  of  the  United  States,  or  any  of 
them.”2 

But  here,  it  will  be  perceived,  two  errors  were 
committed.  The  first  was,  that  the  levying  of  war 
against  a State  was  declared  to  be  treason  against 
the  United  States.  This  opened  a very  intricate 
question,  and  loaded  the  definition  with  embarrass- 
ment ; for,  however  true  it  might  be,  in  some  cases, 
that  an  attack  on  the  sovereignty  of  a State  might 

1 4 Blackstone’s  Com.,  Book  IV.  2 Art.  VI.  § 2 of  the  first  draft  of 
eh.  6.  the  Constitution.  Elliot,  V.  379. 

VOL.  II.  49 


386 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tend  to  subvert  or  endanger  the  government  of  the 
United  States,  yet  a concerted  resistance  to  the  laws 
of  a State,  which  is  one  of  the  forms  of  “ levying 
war  ” within  the  meaning  of  that  phrase,  might  have 
in  it  no  element  of  an  offence  against  the  United 
States,  and  might  have  no  tendency  to  injure  their 
sovereignty.  Besides,  if  resistance  to  the  govern- 
ment of  a State  were  to  be  made  treason  against 
the  United  States,  the  offender,  as  was  well  said 
by  Mr.  Madison,  might  be  subject  to  trial  and  pun- 
ishment under  both  jurisdictions.1  In  order,  there- 
fore, to  free  the  definition  of  treason  of  all  complexity, 
and  to  leave  the  power  of  the  States  to  defend  their 
respective  sovereignties  without  embarrassment,  the 
Convention  wisely  determined  to  make  the  crime  of 
treason  against  the  United  States  to  consist  solely  in 
acts  directed  against  the  United  States  themselves. 

The  other  error  of  the  committee  consisted  in 
omitting  from  the  definition  the  qualifying  words 
of  the  statute  of  Edward  III.,  “ giving  them  aid 
and  comfort,”  which  determine  the  meaning  of  “ ad- 
hering” to  the  public  enemy.2  These  words  were 
added  by  the  Convention,  and  the  crime  of  treason 
against  the  United  States  was  thus  made  to  consist 
in  levying  war  against  the  United  States,  or  in  ad- 
hering to  their  enemies  by  the  giving  of  aid  and 
comfort.3 

With  respect  to  the  nature  of  the  evidence  of  this 

1 Elliot,  V.  450.  comfort,”  and  not  as  if  they  were 

2 The  effect  of  these  words  is  as  two  separate  offences. 

if  the  statute  read  “adhering  to  3 See  the  debate,  Elliot,  V.  447- 
the  enemy  iy  giving  him  aid  and  451. 


Ch.  xii.j 


TREASON. 


387 


crime,  the  committee  provided  that  no  person  should 
be  convicted  of  treason  unless  on  the  testimony  of 
two  witnesses.  But  to  make  this  more  definite,  it 
was  provided  by  an  amendment,  that  the  testimony 
of  the  two  witnesses  should  be  to  the  same  overt 
act ; and  also  that  a conviction  might  take  place 
on  a confession  made  in  open  court.  The  punish- 
ment of  treason  was  not  prescribed  by  the  Constitu- 
tion, but  was  left  to  be  declared  by  the  Congress ; 
with  the  limitation,  however,  that  no  attainder  of 
treason  should  work  corruption  of  blood,  or  for- 
feiture, except  during  the  life  of  the  person  at- 
tainted.1 

1 Ibid.  Art.  III.  § 3 of  the  Constitution. 


CHAPTER  XIII. 

Report  of  the  Committee  of  Detail,  continued.  — Election 
and  Powers  of  the  President. 

In  describing  the  manner  in  which  the  Constitu- 
tion and  powers  of  the  Senate  were  finally  arranged, 
I have  already  had  occasion  to  state,  that,  after  the 
report  of  the  committee  of  detail  came  in,  — vesting 
the  appointment  of  the  President  in  the  national 
legislature,  creating  a term  of  seven  years,  and  mak- 
ing the  incumbent  ineligible  a second  time,  — a di- 
rect election  by  the  people  was  negatived  by  a large 
majority.  This  mode  of  election,  as  a means  of  re- 
moving the  appointment  from  the  legislature,  would 
have  been  successful,  but  it  was  inadmissible  on  oth- 
er accounts.  In  the  first  place,  it  would  have  given 
to  the  government  a character  of  complete  consoli- 
dation, so  far  as  the  executive  department  was  con- 
cerned, to  have  vested  the  election  in  the  people  of 
the  United  States  as  one  community.  In  the  second 
place,  not  only  would  the  States,  as  sovereignties, 
have  been  excluded  from  representation  in  this  de- 
partment, but  the  slaveholding  States  would  have 
had  a relative  weight  in  the  election  only  in  the  pro- 
portion of  their  free  inhabitants.  On  the  other  hand, 
to  provide  that  the  executive  should  be  appointed  by 


Ch.  XIII.] 


ELECTION  OF  PKESIDENT. 


389 


electors,  to  be  chosen  by  the  people  of  the  States,  in- 
volved the  necessity  of  prescribing  some  rule  of  suf- 
frage for  the  people  of  all  the  States,  or  of  adopting 
the  existing  rules  of  the  States  themselves.  Proba- 
bly it  was  on  account  of  this  embarrassment,  that  a 
proposition  for  electors  to  be  chosen  in  this  mode  was 
negatived,  by  a bare  majority,  soon  after  the  vote  re- 
jecting a direct  election  of  the  President  by  the  peo- 
ple.1 There  remained  the  alternatives  of  an  election 
by  one  or  both  of  the  houses  of  Congress,  or  by  elec- 
tors appointed  by  the  States  in  a certain  ratio,  or  by 
electors  appointed  by  Congress.  The  difficulty  of 
selecting  from  these  various  modes  led  the  Conven- 
tion to  adhere  to  an  election  by  the  two  houses ; and 
when  the  disadvantages  of  this  plan,  already  de- 
scribed, had  developed  the  necessity  for  some  other 
mode  of  appointment,  the  relations  between  the  Sen- 
ate and  the  executive  were,  as  we  have  seen,  sent  to 
a grand  committee,  who  devised  a scheme  for  their 
adjustment. 

In  this  plan  it  was  proposed  that  each  State  should 
appoint,  in  such  manner  as  its  legislature  might  di- 
rect, a number  of  electors  equal  to  the  whole  number 
of  senators  and  representatives  in  Congress  to  which 
the  State  might  be  entitled  under  the  provisions  of 
the  Constitution  already  agreed  upon.  The  advan- 
tages of  this  plan  were,  that  it  referred  the  mode  of 
appointing  the  electors  to  the  States  themselves,  so 
that  they  could  adopt  a popular  election,  or  an  elec- 
tion by  their  legislatures,  as  they  might  prefer ; and 


1 August  24.  Elliot,  V.  472,  473. 


390 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


that  it  would  give  to  each  State  the  same  weight  in 
the  choice  of  the  President  that  it  was  to  have  in  the 
two  houses  of  Congress,  provided  a majority  or  a plu- 
rality of  the  electoral  votes  were  to  determine  the  ap- 
pointment. The  committee  recommended  that  the 
electors  should  meet  in  their  respective  States,  on  the 
same  day,  and  vote  by  ballot  for  two  persons,  one  of 
whom,  at  least,  should  not  be  an  inhabitant  of  the 
same  State  with  themselves ; and  that  the  person 
having  the  greatest  number  of  votes,  if  such  number 
were  a majority  of  all  the  electoral  votes,  should  be 
the  President.  To  this  part  of  the  plan,  there  was 
likely  to  be  little  objection.  But  the  mode  of  elect- 
ing the  President  in  case  of  a failure  to  concentrate  a 
majority  of  the  electoral  votes  upon  one  person,  or  in 
case  more  than  one  person  should  have  such  a ma- 
jority, was  the  most  difficult  part  of  the  whole  scheme. 
The  object  of  the  committee  was  to  devise  a process 
which  should  result  in  the  election  both  of  a President 
and  a Vice-President;  and  they  proposed  to  make  the 
person  having  the  next  largest  number  of  electoral 
votes  the  Vice-President.  If  two  of  the  persons 
voted  for  should  have  a majority  of  all  the  votes,  and 
the  same  number  of  votes,  then  the  Senate  were  im- 
mediately to  choose  one  of  them,  by  ballot,  as  the 
President;  if  no  person  should  have  such  a majority, 
then  the  Senate  were  to  choose  the  President  by  bal- 
lot from  the  five  highest  on  the  list  of  candidates  re- 
turned by  the  electors.  If  a choice  of  the  President 
had  been  effected  by  the  electoral  votes,  the  person 
having  the  next  highest  number  of  electoral  votes 


Ch.  XIII.] 


ELECTION  OF  PRESIDENT. 


391 


was  to  be  the  Vice-President ; and  if  there  were  two 
or  more  having  an  equal  number  of  electoral  votes, 
the  Senate  were  to  choose  one  of  them  as  Vice-Pres- 
ident. 

From  the  proceedings  which  took  place  upon  this 
plan,  it  appears  that  what  many  of  the  framers  of  the 
Constitution  most  apprehended  was,  that  the  votes 
in  the  electoral  bodies  would  not  be  sufficiently  con- 
centrated to  effect  a choice,  from  want  of  the  requi- 
site general  knowledge  of  the  persons  who  might 
be  considered  in  different  parts  of  the  Union  as  fit 
candidates  for  these  high  offices ; and  consequently 
that  the  election  would  be  thrown  into  such  other 
body  as  might  be  directed  to  make  it  after  a failure 
in  the  action  of  the  electors.  It  is  a remarkable 
proof  of  their  wisdom,  that,  although  intimations  be- 
gan to  appear  in  the  public  prints,  as  soon  as  the 
Constitution  was  published,  that  Washington  would 
be  the  first  President  of  the  United  States,  — an  ex- 
pectation that  must,  therefore,  have  been  entertained 
by  the  members  of  the  Convention  before  they  had 
finished  their  labors,  — they  were  at  no  time  under 
the  influence  of  this  pleasing  anticipation.1  They 
kept  steadily  in  view  a state  of  things  in  which,  from 
the  absence  of  statesmen  of  national  reputation  and 
influence,  and  from  the  effect  of  local  preferences,  no 
choice  would  be  made  by  the  electors.  Hence  their 
solicitude  to  provide  for  the  secondary  election,  in 

1 The  Constitution  was  published  delphia  paper  suggested,  or,  as  we 
in  the  Pennsylvania  Journal,  Sept.  should  now  say,  “ nominated”  Gen- 
1 9th.  On  the  2 7th,  another  Phila-  eral  Washington  for  the  Presidency. 


392 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


such  a way  as  to  admit  of  a re-election  of  the  incum- 
bent. It  was  soon  found  that  between  the  President 
and  the  Senate  there  would  be  a mutual  connection 
and  influence,  Avhich  would  be  productive  of  serious 
evils,  Avhether  he  were  to  be  made  eligible  or  ineli- 
gible a second  time,  if  the  Senate  were  to  have  the 
appointment  after  the  electors  had  failed  to  make 
a choice.  To  remedy  this,  many  of  the  members, 
among  whom  was  Hamilton,  preferred  to  let  the 
highest  number  of  electoral  votes,  whether  a major- 
ity or  not,  appoint  the  President.  As  the  grand  com- 
mittee had  proposed  to  reduce  the  term  of  office  from 
seven  to  four  years,  and  to  strike  out  the  clause  mak- 
ing the  incumbent  ineligible,  — a change  which  met 
the  approbation  of  a large  majority  of  the  States,  — 
it  became  still  more  necessary  to  prevent  any  resort 
to  the  Senate  for  a secondary  election.  But  an  ap- 
pointment by  less  than  a majority  of  the  electoral 
votes  presented,  on  the  other  hand,  the  serious  objec- 
tion that  the  President  might  owe  his  appointment 
to  a minority  of  the  States.  To  preserve,  as  far  as 
possible,  a federal  character  for  the  government,  in 
some  of  its  departments,  was  justly  regarded  as  a 
point  of  great  importance.  One  branch  of  the  legis- 
lature had  become  a depositary  of  the  democratic 
power  of  a majority  of  the  people  of  the  United 
States ; — the  other  branch  was  the  representative  of 
the  States  in  their  corporate  capacities ; — the  Presi- 
dent was  to  be  in  some  sense  a third  branch  of  the 
legislative  power,  by  means  of  his  limited  control 
over  the  enactment  of  laws ; — and  it  was,  therefore, 


Ch.  XIII.]  ELECTION  OF  PRESIDENT.  393 

something  more  than  a mere  question  of  convenience, 
whether  he  should,  at  the  final  stage  of  the  process, 
be  elected  by  a less  number  than  a majority  of  all 
the  States.  That  part  of  the  plan  which  proposed 
to  elect  him  by  a majority  of  all  the  electoral  votes, 
giving  to  each  State  as  many  votes  as  it  was  to  have 
in  both  houses  of  Congress,  might  make  the  individ- 
ual, when  so  elected,  theoretically  the  choice  of  a ma- 
jority of  the  people  of  the  United  States,  although 
not  necessarily  the  choice  of  a majority  of  the  States. 
But  there  was  a peculiar  feature  of  this  plan,  — after- 
wards, in  the  year  1804,  changed  to  a more  direct 
method,  — by  which  the  electors  were  required  to  re- 
turn their  votes  for  two  persons,  without  designat- 
ing which  of  them  was  their  choice  for  President, 
and  which  for  Vice-President,  the  designation  being 
determined  by  the  numbers  of  votes  found  to  be 
given  for  each  person.  This  method  of  voting  in- 
creased the  chances  of  a failure  to  choose  the  Presi- 
dent by  the  electoral  votes.  It  is  not  easy  to  under- 
stand why  the  framers  of  the  Constitution  adhered 
to  it ; although  it  is  probable  that  its  original  design 
was  to  prevent  corruption  and  intrigue.  Whatever 
its  purpose  may  have  been,  it  served  to  make  still 
more  prominent  the  expediency,  not  only  of  remov- 
ing the  ultimate  election  from  the  Senate,  but  of  pro- 
viding some  mode  of  conducting  that  election  by 
which  an  appointment  by  a minority  of  the  States 
would  he  prevented,  when  a majority  of  the  electo- 
ral votes  had  not  united  upon  any  one  individual,  or 
had  united  upon  two. 

50 


VOL-  II. 


394 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  plan  which  had  been  prepared  by  the  grand 
committee,  and  which  adjusted  the  relations  between 
the  executive  and  the  Senate  respecting  appointments 
and  treaties,  had  left  no  body  in  the  government  so 
likely  to  be  free  from  intimate  relations  with  the 
President,  and  at  the  same  time  so  capable  of  being 
made  the  instrument  of  an  election,  as  the  House  of 
Representatives.  By  the  fundamental  principle  on 
which  that  body  had  been  agreed  to  be  organized,  — 
in  direct  contrast  to  the  basis  of  the  Senate,  — its 
members  were  the  representatives  of  the  people  in- 
habiting the  several  States,  and  in  the  business  of 
legislation  a majority  of  their  votes  was  to  express 
the  will  of  a majority  of  the  people  of  the  United 
States.  But  the  representatives  were  to  be  chosen 
in  the  separate  States ; and  nothing  was  more  easy, 
therefore,  than  to  provide  that,  in  any  other  function, 
they  should  act  as  the  agents  of  their  States,  making 
the  States  themselves  the  real  parties  to  the  act, 
without  doing  any  violence  to  the  principle  on  which 
they  were  assembled  for  the  purposes  of  legislation. 
Accordingly,  as  soon  as  a transfer  of  the  ultimate 
election  from  the  Senate  to  the  House  of  Repre- 
sentatives was  proposed,  the  method  of  voting  by 
States  was  adopted,  with  only  a single  dissent.1 
The  establishment  of  two  thirds  as  a quorum  of 
the  States  for  this  purpose,  and  the  provision  that 
a majority  of  all  the  States  should  be  necessary  to 
a choice,  followed  naturally  as  the  proper  safeguards 
against  corruption,  and  were  adopted  unanimously. 

1 Delaware.  Elliot,  V.  519. 


Cu.  XIII.]  ELECTION  OF  VICE-PRESIDENT. 


395 


The  principal  office  of  the  executive  department 
was  thus  provided  for;  but  the  ultimate  choice  of 
the  Vice-President  remained  to  be  regulated.  This 
office  was  unknown  to  the  draft  of  the  Constitution 
prepared  by  the  committee  of  detail,  and  was  sug- 
gested only  when  the  mode  of  organizing  the  exec- 
utive, and  of  providing  for  some  of  the  separate 
functions  of  the  Senate,  came  to  be  closely  consid- 
ered together.  We  are  to  look  for  its  purposes, 
therefore,  in  the  provisions  specially  devised  for  the 
settlement  of  these  relations.  In  the  first  place,  it 
was  apparent  that  the  executive  would  be  a branch 
of  the  government  that  ought  never  to  be  vacant. 
The  principle  which,  in  hereditary  monarchies,  on 
the  death  of  the  sovereign,  instantly  devolves  the 
executive  power  upon  him  who  stands  next  in  a 
fixed  order  of  succession,  must  in  some  degree  be 
imitated  in  purely  elective  governments,  if  great 
mischiefs  are  to  be  avoided.  The  difficulty  which 
attends  its  application  to  such  governments  consists 
not  in  the  nature  of  the  principle  itself,  but  in  find- 
ing a number  of  public  functionaries  who  can  be 
placed  in  a certain  order  of  succession,  without 
creating  mere  heirs  to  the  succession,  for  that  pur- 
pose alone.  In  hereditary  governments,  the  mem- 
bers of  a family,  in  a designated  order,  stand  as  the 
successive  recipients  of  the  executive  office ; and 
each  of  them,  until  he  reaches  the  throne,  may 
have  no  other  function  in  the  state  than  that  of 
an  heir,  near  or  remote,  to  the  crown,  and  may, 
without  inconvenience  to  the  public  welfare,  occupy 


396 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


that  position  alone.  But  in  elective,  and  especially 
in  republican  governments,  the  succession  must  be 
devolved  on  some  person  already  tilling  some  other 
office;  for  to  designate  as  a successor  to  the  chief 
magistrate  a person  who  has  no  public  employment, 
and  no  other  public  position  than  that  of  an  heir 
apparent,  would  be  attended  with  many  obvious 
disadvantages,  in  such  a government. 

Fortunately,  the  peculiar  construction  of  the  Sen- 
ate was  found  to  require  a presiding  officer  who 
should  not  be  a member  of  the  body  itself.  As 
each  State  was  to  be  represented  by  two  delegates, 
and  as  it  would  be  important  not  to  withdraw 
either  of  them  from  active  participation  in  the 
business  of  the  chamber,  a presiding  officer  was 
needed  who  would  represent  neither  of  the  States. 
By  placing  the  Vice-President  of  the  United  States 
in  this  position,  he  would  have  a place  of  dignity 
and  importance,  would  be  at  all  times  conversant 
with  the  public  interests,  and  might  pass  to  the 
chief  magistracy,  on  the  occurrence  of  a vacancy, 
attended  with  the  public  confidence  and  respect. 
This  arrangement  was  devised  by  the  grand  com- 
mittee, and  was  adopted  with  general  consent.  It 
contemplated,  also,  that  the  Vice-President,  as  Presi- 
dent of  the  Senate,  should  have  no  vote,  unless  upon 
questions  on  which  the  Senate  should  be  equally 
divided ; and  on  account  of  his  relation  to  this 
branch  of  the  legislature,  the  ultimate  election  of 
the  Vice-President,  when  the  electors  had  failed  to 
appoint  him  under  the  rule  prescribed,  was  retained 
in  the  hands  of  the  Senate. 


Ch.  XIII.]  SUCCESSION  TO  THE  PRESIDENCY. 


397 


The  rule  that  was  to  determine  when  the  Vice- 
President  was  to  succeed  to  the  functions  of  the 
chief  magistrate,  was  also  embraced  in  the  plan  of 
the  grand  committee.  It  was  apparent  that  a va- 
cancy in  the  principal  office  might  occur  by  death, 
by  resignation,  by  the  effect  of  inability  to  discharge 
its  powers  and  duties,  and  by  the  consequences  of 
an  impeachment.  When  either  of  these  events 
should  occur,  it  was  provided  that  the  office  should 
devolve  on  the  Vice-President.  In  the  case  of  death 
or  resignation  of  the  President,  no  uncertainty  can 
arise.  In  a case  of  impeachment,  a judgment  of 
conviction  operates  as  a removal  from  office.  But 
the  grand  committee  did  not  provide,  and  the  Con- 
stitution does  not  contain  any  provision  or  direc- 
tion, for  ascertaining  the  case  of  an  inability  to  dis- 
charge the  powers  and  duties  of  the  office.  When 
such  an  inability  is  supposed  to  have  occurred,  and 
is  not  made  known  by  the  President  himself,  how  is 
it  to  be  ascertained  ? Is  there  any  department  of 
the  government  that  can,  with  or  without  a pro- 
vision of  law,  proceed  to  inquire  into  the  capacity 
of  the  President,  and  to  pronounce  him  unable  to 
discharge  his  powers  and  duties'?  What  is  meant 
by  the  Constitution  as  inability  is  a case  which  does 
not  fall  within  the  power  of  impeachment,  for  that 
is  confined  to  treason,  bribery,  and  other  high  crimes 
and  misdemeanors.  It  is  the  case  of  a simple  inca- 
pacity, arising'  from  insanity,  or  ill  health,  or,  as 
might  possibly  occur,  from  restraint  of  the  person 
of  the  President  by  a public  enemy.  But  in  the 


398 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


former  case,  how  shadowy  are  the  lines  which  often 
separate  the  sound  mind  or  body  from  the  unsound ! 
Society  has  had  one  memorable  example,  in  modem 
times  and  in  constitutional  monarchy,  of  the  delicacy 
and  difficulty  of  such  an  inquiry ; — an  instance  in 
which  all  the  appliances  of  science  and  all  the  fixed 
rules  of  succession  were  found  scarcely  sufficient  to 
prevent  the  rage  of  party,  and  the  struggles  of  per- 
sonal ambition,  from  putting  the  state  in  jeopardy.1 
With  us,  should  such  a calamity  ever  happen,  there 
must  be  a similar  effort  to  meet  it  as  nearly  as  pos- 
sible upon  the  principles  of  the  Constitution,  and 
consequently  there  must  be  a similar  strain  on  the 
Constitution  itself. 

In  order  to  make  still  further  provision  for  the 
succession,  Congress  were  authorized  to  declare  by 
law  what  officer  should  act  as  President,  in  case  of 
the  removal,  death,  resignation,  or  inability  of  both 
the  President  and  the  Vice-President,  until  the  dis- 
ability should  be  removed,  or  a new  President  should 
be  elected. 


The  mode  of  choosing  the  electors  was,  as  we  have 


1 I allude,  of  course,  to  the  case 
of  King  George  III.,  which  had  not 
happened  when  our  Constitution 
was  framed.  To  ascertain  the 
sanity  of  a private  person  is  cer- 
tainly often  no  less  delicate  and 
difficult,  than  to  inquire  into  the 
sanity  of  a person  in  a high  public 
position.  But  there  is  a legal  pro- 
cess for  determining  the  capacity 
of  every  person  to  discharge  pri- 


vate duties  or  to  exercise  private 
rights.  In  the  case  of  the  Presi- 
dent of  the  United  States,  there  is 
no  mode  provided  by  the  Consti- 
tution for  ascertaining  his  inability 
to  discharge  his  public  functions, 
and  no  authority  seems  to  have 
been  given  to  Congress  to  provide 
for  such  an  inquiry.  Perhaps  the 
authority  could  not  have  been  giv- 
en, with  safety  and  propriety. 


Ch.  xiii.j 


OPENING  OF  VOTES. 


399 


seen,  left  to  the  legislatures  of  the  States.  Uni- 
formity, in  this  respect,  was  not  essential  to  the 
success  of  this  plan  for  the  appointment  of  the  ex- 
ecutive, and  it  was  important  to  leave  to  the  people 
of  the  States  all  the  freedom  of  action  that  would  be 
consistent  with  the  free  working  of  the  Constitution. 
But  it  was  necessary  that  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  were  to  give 
their  votes,  should  be  prescribed  for  all  the  States 
alike.  These  particulars  were,  therefore,  placed  un- 
der the  direction  of  Congress,  with  the  single  restric- 
tion, that  the  day  of  voting  in  the  electoral  colleges 
should  be  the  same  throughout  the  United  States. 
In  order  to  make  the  electors  a distinct  and  inde- 
pendent body  of  persons,  appointed  for  the  sole 
function  of  choosing  the  President  and  Vice-Presi- 
dent, it  was  provided  further,  that  no  senator  or 
representative,  or  person  holding  an  office  of  trust 
or  profit  under  the  United  States,  shall  be  appointed 
an  elector.1 

The  electors  were  required  to  meet  in  their  re- 
spective States,  and  to  vote  by  ballot  for  two  per- 
sons, one  of  whom  at  least  should  not  be  an  inhab- 
itant of  the  same  State  with  themselves.  Having 
made  a list  of  all  the  persons  voted  for,  and  of  the 
number  of  votes  given  for  each,  they  were  to  sign 
and  certify  it,  and  to  transmit  it  sealed  to  the  seat 
of  government  of  the  United  States,  directed  to  the 
President  of  the  Senate,  who,  in  the  presence  of  the 

1 This  clause  was  inserted,  by  of  Mr.  King  and  Mr.  Gerry,  Sep- 
unanimous  consent,  on  the  motion  tember  6.  Elliot,  V.  515. 


400 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


Senate  and  the  House  of  Representatives,  was  to  open 
all  the  certificates,  and  the  votes  were  then  to  be 
counted. 

Such  was  the  method  devised  by  the  framers  of  the 
Constitution  for  filling  the  executive  office.  Experi- 
ence has  required  some  changes  to  be  made  in  it.  It 
has  been  found  that  to  require  the  electors  to  desig- 
nate the  persons  for  whom  they  vote  as  the  President 
and  Vice-President,  respectively,  has  a tendency  to 
secure  a choice  by  the  electoral  votes,  and  therefore 
to  prevent  the  election  from  being  thrown  into  the 
House  of  Representatives;  and  it  has  also  been 
deemed  expedient,  when  the  election  has  devolved 
on  the  House  of  Representatives,  to  confine  the 
choice  of  the  States  to  the  three  highest  candidates 
on  the  list  returned  by  the  electors.  These  changes 
were  made  by  the  twelfth  of  the  amendments  to  the 
Constitution,  adopted  in  the  year  1804,  which  also 
provides  that  the  person  having  the  greatest  number 
of  the  electoral  votes  for  President  shall  be  deemed 
to  be  chosen  by  the  electors,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed. 
If  a choice  is  not  made  by  the  electors,  or  by  the 
House  of  Representatives,  before  the  fourth  day  of 
March  next  following  the  election,  the  amendment 
declares  that  the  Vice-President  shall  act  as  Presi- 
dent, “ as  in  the  case  ” (provided  by  the  Constitution) 
“ of  the  death  or  other  constitutional  disability  of  the 
President.” 

In  the  appointment  of  the  Vice-President,  the 
amendment  has  also  introduced  some  changes.  The 


Ch.  XIII.]  SUCCESSION  TO  THE  PRESIDENCY. 


401 


person  having  the  greatest  number  of  the  electoral 
votes  as  Vice-President,  if  the  number  is  a majority 
of  all  the  electors  appointed,  is  to  be  the  Vice-Presi- 
dent ; but  if  no  choice  is  thus  effected,  the  Senate  are 
to  choose  the  Vice-President  from  the  two  highest 
candidates  on  the  list  returned  by  the  electors ; but 
a quorum  for  this  purpose  is  to  consist  of  two  thirds 
of  the  whole  number  of  senators,  and  a majority  of 
the  wrhole  number  is  made  necessary  to  a choice. 
The  amendment  further  adopts  the  same  qualifica- 
tions for  the  office  of  Vice-President  as  had  been 
established  by  the  Constitution  for  the  office  of  Pres- 
ident.1 

Thus  it  appears,  from  an  examination  of  the  origi- 
nal Constitution  and  the  amendment,  that  the  most 
ample  provision  is  made  for  filling  the  executive  of- 
fice, in  all  contingencies  but  one.  If  the  electors  fail 
to  choose  according  to  the  rule  prescribed  for  them, 
the  election  devolves  on  the  House  of  Representa- 
tives. If  that  body  does  not  choose  a President  be- 
fore the  fourth  day  of  March  next  ensuing,  the  office 
devolves  on  the  Vice-President  elect,  whether  he  has 
been  chosen  by  the  electors  or  by  the  Senate.  But 
if  the  House  of  Representatives  fail  to  choose  a Pres- 
ident, and  the  Senate  make  no  choice  of  a Vice- 
President,  or  the  Vice-President  elect  dies  before  the 
next  fourth  day  of  March,  the  Constitution  makes 
no  express  provision  for  filling  the  office,  nor  is  it 
easy  to  discover  in  it  how  such  a vacancy  is  to  be 
met.  The  Constitution,  it  is  true,  confers  upon  Con- 

1 See  post,  p.  621. 

51 


VOL.  II. 


402 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


gress  authority  to  provide  by  law  for  the  case  of  re- 
moval, death,  resignation,  or  inability  of  both  the 
President  and  Vice-President,  and  to  declare  what 
officer  shall  then  act  as  President;  and  it  provides 
that  the  officer  so  designated  by  a law  of  Congress 
shall  act  accordingly,  until  the  disability  be  removed, 
or  a President  shall  be  elected.  But  there  is  every 
reason  to  believe  that  this  provision  embraces  the 
case  of  a vacancy  in  both  offices  occasioned  by  re- 
moval, death,  resignation,  or  inability,  not  of  the 
President  and  Vice-President  elect,  but  of  the  Presi- 
dent and  Vice-President  in  office.  It  may  be  doubted 
whether  the  framers  of  the  original  Constitution  in- 
tended to  provide  for  a vacancy  in  both  offices  occa- 
sioned by  the  failure  of  the  House  of  Representatives 
to  elect  a President  and  the  death  of  the  Vice-Presi- 
dent elect,  or  a non-election  of  a Vice-President  by 
the  Senate,  before  the  fourth  day  of  March.  Their 
plan  was  in  the  first  instance  studiously  framed  for 
the  purpose  of  impressing  on  the  electors  the  duty 
of  concentrating  their  votes ; and  although  they  saw 
and  provided  for  the  evident  necessity  of  an  election 
of  a President  by  the  House  of  Representatives, 
when  the  electoral  votes  had  not  produced  a choice, 
they  omitted  all  express  provision  for  a failure  of  the 
House  to  choose  a President,  apparently  for  the  pur- 
pose of  making  the  States  in  that  body  feel  the  im- 
portance of  the  secondary  election,  and  the  duty  of 
uniting  their  votes.  This  omission  was  supplied  by 
the  amendment,  which  authorizes  the  Vice-President 
elect  to  act  as  President,  when  the  House  of  Repre- 


Ch.  XIII.]  SUCCESSION  TO  THE  PRESIDENCY 


403 


sentatives  have  failed  to  choose  a President,  “ as  in 
the  case  of  the  death  or  other  constitutional  disabil- 
ity of  the  President.”  This  adoption,  for  the  case 
of  a non-election  by  the  House,  of  the  mode  of  suc- 
cession previously  established  by  the  Constitution, 
shows  that  the  authority  which  the  Constitution  gave 
to  Congress  to  declare  by  law  what  officer  shall  act 
as  President,  in  case  of  a vacancy  in  both  offices,  was 
confined  to  the  removal,  death,  resignation,  or  inabil- 
ity of  the  President  and  Vice-President  in  office,  and 
does  not  refer  to  the  President  and  Vice-President 
elect,  whose  term  of  office  has  not  commenced.1 


1 Congress,  however,  have  not 
only  provided  that  the  President 
pro  tempore  of  the  Senate  and  the 
Speaker  of  the  House  of  Repre- 
sentatives shall  successively  act  as 
President,  in  case  of  the  removal, 
death,  resignation,  or  inability  both 
of  the  President  and  Vice-Presi- 
dent, until  the  disability  be  re- 
moved or  a President  shall  be  elect- 
ed, but  also  that,  whenever  the 
offices  of  President  and  Vice-Pres- 
ident shall  both  become  vacant,  a 
new  appointment  of  electors  shall 
be  ordered,  and  a new  election 
made.  The  constitutional  author- 
ity for  this  latter  provision  is  at 
least  doubtful.  (Act  of  March  1, 
1792.)  I have  discovered  no  evi- 
dence that  the  framers  of  the 
Constitution  contemplated  an  in- 
termediate election  of  President 
and  Vice-President,  excepting  an 
amendment  moved  by  Mr.  Madi- 
son. The  clause  which  enables 
Congress  to  declare  what  officer 


shall  act  as  President,  on  the  death, 
See.  of  both  the  President  and  Vice- 
President,  was  introduced  by  Gov- 
ernor Randolph,  and  terminated 
thus : “ And  such  officer  shall  act 
accordingly,  until  the  time  of  elect- 
ing a President  shall  arrive.”  Mr. 
Madison  moved  to  substitute  for 
this  the  words,  “ until  such  disabil- 
ity be  removed,  or  a President 
shall  be  elected”;  and  he  lias  re- 
corded in  his  Minutes,  that  he  re- 
marked, on  moving  this  amend- 
ment, that  the  phraseology  of  Gov- 
ernor Randolph  “ would  prevent  a 
supply  of  the  vacancy  by  an  inter- 
mediate election.”  This  amend- 
ment was  adopted.  (Elliot,  V. 
520,  521.)  But  the  difficulty  in 
the  way  of  construing  the  clause  so 
as  to  give  effect  to  this  suggestion 
is,  that  the  terms  employed  by  Mr. 
Madison  do  not  of  themselves  ne- 
cessarily import  an  authority  to 
Congress  to  order  an  intermediate 
election,  any  more  than  those  used 


404 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


The  committee  of  detail  made  no  provision  re- 
specting the  qualifications  of  the  President.  But 
the  grand  committee,  to  whom  the  construction  of 
the  office  was  referred,  recommended  the  qualifica- 
tions which  are  to  be  found  in  the  Constitution; 
namely,  that  no  person  shall  be  eligible  to  the 
office  who  was  not  born  a citizen  of  the  United 
States,  or  was  not  a citizen  at  the  time  of  the 
adoption  of  the  Constitution,  and  who  had  not  at- 
tained the  age  of  thirty-five  years,  and  been  fourteen 
years  a resident  within  the  United  States.  These 
requirements  were  adopted  with  unanimous  assent.1 

That  the  executive  should  receive  a stipend,  or 
pecuniary  compensation,  was  a point  which  had 
been  settled  in  the  earliest  stage  of  the  proceedings, 


by  Governor  Randolph.  Either  of 
these  expressions,  when  incorpo- 
rated into  the  Constitution,  would 
have  to  be  construed  with  refer- 
ence to  the  whole  system  prescribed 
by  the  Constitution  for  filling  the 
executive  branch  of  the  govern- 
ment. Taking  all  the  provisions 
together,  it  appears  that  the  ex- 
ecutive power  is  to  be  vested  in 
a President,  who  is  to  hold  his 
office  for  a term  of  four  years ; 
that  Congress  shall  fix  the  day  on 
which  he  is  to  be  chosen  by  the 
electors  ; that,  when  so  chosen,  he 
is  to  hold  the  executive  power  for 
four  years ; that  if  he  dies,  or  is 
disabled,  within  that  term,  and 
there  is  no  Vice-President  to  suc- 
ceed him,  Congress  shall  declare 
by  law  what  officer  shall  then  act 
as  President , that  is,  shall  hold  and 


exercise  the  executive  power,  and 
such  officer  is  to  act  accordingly, 
until  the  disability  be  removed,  or 
a President  shall  be  elected.  It 
would  seem,  therefore,  that  when 
the  officer  designated  by  Congress 
is  required  to  act  as  President,  the 
powers  and  duties  of  the  office  are 
devolved  upon  him  for  the  residue 
of  the  term  of  four  years,  in  a case 
of  vacancy  by  death,  removal,  or 
resignation  ; for  the  terms  “ until 
a President  shall  be  elected  ” cer- 
tainly do  not  import  any  express 
authority  to  order  a new  election  ; 
and  although  there  is  a general 
authority  in  Congress  to  fix  the 
day  for  the  election  of  a President, 
it  must  be  a President  chosen  for 
the  term  of  four  years. 

l Elliot,  V.  462,  507,  521,  522. 


Ch  XIII.  | 


SALA11Y  OF  THE  PRESIDENT. 


405 


notwithstanding  the  grave  authority  of  Franklin, 
who  was  opposed  to  it.  The  speech  which  he  de- 
livered on  this  subject  was  based  upon  the  maxim, 
that,  in  all  cases  of  public  service,  the  less  profit,  the 
greater  honor.  He  seems  to  have  been  actuated 
chiefly  by  the  fear  that  the  government  would  in 
time  be  resolved  into  a monarchy;  and  he  thought 
this  catastrophe  would  be  longer  delayed,  if  the 
seeds  of  contention,  faction,  and  tumult  were  not 
sown  in  the  system,  by  making  the  places  of  honor 
places  of  profit.  He  maintained  this  opinion  for 
the  case  even  of  a plural  executive,  which  he  de- 
cidedly advocated ; and  he  instanced  the  example 
of  Washington,  who  had  led  the  armies  of  the 
Revolution  for  eight  years  Avithout  receiving  the 
smallest  compensation  for  his  services,  to  prove 
the  practicability  of  “ finding  three  or  four  men,  in 
all  the  United  States,  with  public  spirit  enough  to 
bear  sitting  in  peaceful  council  for  perhaps  an  equal 
term,  merely  to  preside  over  our  civil  concerns,  and 
see  that  our  laws  are  duly  executed.”  His  plan  Avas 
treated  Avith  the  respect  due  to  his  illustrious  char- 
acter, but  no  one  failed  to  see  that  it  Avas  a “Utopian 
idea.”1  The  example  of  Washington  Avas,  in  truth, 
inapplicable  to  the  question.  A patriotic  Virginia 
gentleman,  of  ample  fortune,  Avas  called  upon,  in 
the  day  of  his  country’s  greatest  trial,  to  take  the 

lead  in  a desperate  struggle  for  independence.  The 

/ 

1 He  anticipated  that  it  would  Franklin  as  any  man  could  be, 
be  so  regarded.  Hamilton,  who  seconded  the  motion,  out  of  respect 
was  in  all  his  views,  as  unlike  for  the  mover. 


406 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


nature  of  the  war,  his  own  eminence,  his  character 
and  feelings,  the  poverty  of  a country  which  he  fore- 
saw would  often  be  unable  to  pay  even  the  common 
soldier,  and  his  motives  for  embarking  in  the  contest, 
all  united  to  make  the  idea  of  compensation  inad- 
missible to  a man  whose  fortune  made  it  unnecessary. 
Such  a combination  of  circumstances  could  scarcely 
ever  occur  in  the  case  of  a chief  magistrate  of  a 
regular  and  established  government.  If  an  individ- 
ual should  happen  to  be  placed  in  the  office,  who 
possessed  private  means  enough  to  render  a salary 
unnecessary  to  his  own  wants,  or  to  the  dignity  of 
the  position,  the  duty  of  his  example  might  point 
in  precisely  the  opposite  direction,  and  make  it 
expedient  that  he  should  receive  what  his  succes- 
sors would  be  unable  to  decline.  But  the  real 
question  which  the  framers  of  the  Constitution 
had  to  decide  was,  in  what  way  could  the  office  be 
constituted  so  as  to  give  the  people  of  the  United 
States  the  widest  range  of  choice  among  the  public 
men  tit  to  be  placed  in  it.  To  attach  no  salary  to 
the  chief  executive  office,  in  a republican  govern- 
ment, would  practically  confine  the  office  to  men 
who  had  inherited  or  accumulated  wealth.  The 
Convention  determined  that  this  mischief  should 
be  excluded.  They  adopted  the  principle  of  com- 
pensation for  the  office  of  chief  magistrate,  and 
when  the  committee  of  detail  came  to  give  effect 
to  this  decision,  they  added  the  provision,  that  the 
compensation  shall  neither  be  increased  nor  dimin- 
ished during  the  period  for  which  a President  has 


Ch.  XIIL] 


QUESTION  OF  A CABINET. 


407 


been  elected.1  The  limitation  which  confines  the 
President  to  his  stated  compensation,  and  forbids 
him  to  receive  any  other  emolument  from  the 
United  States,  or  from  any  State,  wras  subsequently 
introduced,  but  not  by  unanimous  consent.2 

The  question  whether  the  single  person  in  whom 
the  executive  power  was  to  be  vested  should  exercise 
it  with  or  without  the  aid  or  control  of  any  council 
of  state,  was  one  that  in  various  ways  ran  through 
the  several  stages  of  the  proceedings.  As  soon  as  it 
was  settled  that  the  executive  should  consist  of  a 
single  person,  the  nature  and  degree  of  his  respon- 
sibility, and  the  extent  to  which  it  might  be  shared 
by  or  imposed  upon  any  other  officers,  became  mat- 
ters of  great  practical  moment.  What  was  called  at 
one  time  a council  of  revision  was  a body  distinct 
from  a cabinet  council,  and  was  proposed  for  a dif- 
ferent purpose.  The  function  intended  for  it  by  its 
advocates  related  exclusively  to  the  exercise  of  the 
revisionary  check  upon  legislation.  But  we  have 
seen  that  the  nature  of  this  check,  the  purposes 
for  which  it  was  to  be  established,  and  the  prac- 
tical success  with  which  it  could  be  introduced  into 
the  legislative  system,  required  that  the  power  and 
the  responsibility  should  rest  with  the  President 
alone.  There  remained,  however,  the  further  ques- 
tion concerning  a cabinet,  or  council  of  state;  an 
advisory  body,  with  which  some  of  the  most  im- 
portant persons  in  the  Convention  desired  to  sur- 

1 Elliot,  Y.  380.  aware,  and  North  Carolina  voted 

2 Connecticut,  New  Jersey,  Del-  against  it. 


408 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


round  the  President,  to  assist  him  in  the  discharge 
of  his  duties,  without  the  power  of  controlling  his 
actions,  and  without  diminishing  his  legal  responsi- 
bility. Such  a plan  not  having  received  the  sanction 
of  the  Convention,  the  draft  of  the  Constitution  re- 
ported by  the  committee  of  detail  of  course  contained 
no  provision  for  it.  It  was  subsequently  brought 
forward,  and  received  the  recommendation  of  a com- 
mittee ; 1 but  the  grand  committee,  who  were  charged 
with  the  adjustment  of  the  executive  office,  substi- 
tuted for  it  a different  provision,  which  gave  the 
President  power  to  “ require  the  opinion  in  writing 
of  the  principal  officer  in  each  of  the  executive  de- 
partments, upon  any  subject  relating  to  the  duties 
of  their  respective  offices.”  The  friends  of  a council2 
regarded  this  arrangement  of  the  executive  office, 
especially  with  regard  to  the  power  of  appointment, 
as  entirely  defective.3  But  the  reason  on  which  it 
was  rested  by  the  grand  committee,  and  on  which 
the  plan  of  a council  of  state  was  rejected,  was, 
that  the  President  of  the  United  States,  unlike  the 
executive  in  mixed  governments  of  the  monarchical 
form,  was  to  be  personally  responsible  for  his  official 
conduct,  and  that  the  Constitution  should  do  nothing 
to  diminish  that  responsibility,  even  in  appearance. 
If  it  had  not  been  intended  to  make  the  President 
liable  to  impeachment,  a cabinet  might  have  been 
useful,  and  would  certainly  have  been  necessary,  if 

1 Elliot,  V.  446,  462.  3 Elliot,  V.  525. 

2 Mason,  Franklin, Wilson,  Dick- 

inson, and  Madison. 


Ch.  XIII.] 


POWERS  OF  THE  PRESIDENT. 


409 


there  was  to  be  any  responsibility  anywhere  for 
executive  acts.  But  a large  majority  of  the  States 
preferred  to  interpose  no  shield  between  the  President 
and  a public  accusation.  Pie  might  derive  any  as- 
sistance from  the  great  officers  of  the  executive  de- 
partments which  Congress  might  see  fit  to  establish, 
that  he  could  obtain  from  their  opinions  or  advice ; 
but  the  powers  which  the  Constitution  was  to  confer 
on  him  must  be  exercised  by  himself,  and  every  of- 
ficial act  must  be  performed  as  his  own.1 

What  those  powers  were  to  be,  had  not  been  fully 


1 Those  who  are  not  familiar 
with  the  precise  structure  of  the 
American  government  will  proba- 
bly be  surprised  to  leam  that  what 
is  in  practice  sometimes  called  the 
“ Cabinet  ” has  no  constitutional 
existence  as  a directory  body,  or  one 
that  can  decide  anything.  The 
theory  of  our  government  is,  that 
what  belongs  to  the  executive  pow- 
er is  to  be  exercised  by  the  uncon- 
trolled will  of  the  President.  Act- 
ing upon  the  clause  of  the  Constitu- 
tion which  empowers  the  President 
to  call  for  the  opinions  in  writing 
of  the  heads  of  departments,  Wash- 
ington, the  first  President,  com- 
menced the  practice  of  taking  their 
opinions  in  separate  consultation  ; 
and  he  also,  upon  important  occa- 
sions, assembled  them  for  oral  dis- 
cussion, in  the  form  of  a council. 
After  having  heard  the  reasons  and 
opinions  of  each,  he  decided  the 
course  to  be  pursued.  The  second 
President,  Mr.  John  Adams,  fol- 
lowed substantially  the  same  prac- 
52 


tice.  The  third  President,  Mr. 
Jefferson,  adopted  a somewhat  dif- 
ferent practice.  When  a question 
occurred  of  sufficient  magnitude  to 
require  the  opinions  of  all  the  heads 
of  departments,  he  called  them  to- 
gether, had  the  subject  discussed, 
and  a vote  taken,  in  which  he 
counted  himself  but  as  one.  But 
he  always  seems  to  have  considered 
that  he  had  the  poicer  to  decide 
against  the  opinion  of  his  cabinet. 
That  he  never,  or  rarely,  exercised 
it,  was  owing  partly  to  the  unanim- 
ity in  sentiment  that  prevailed  in 
his  cabinet,  and  to  his  desire  to 
preserve  that  unanimity,  and  part- 
ly to  his  disinclination  to  the  exer- 
cise of  personal  power.  When 
there  were  differences  of  opinion, 
he  aimed  to  produce  a unanimous 
result  by  discussion,  and  almost 
always  succeeded.  But  he  admits 
that  this  practice  made  the  execu- 
tive, in  fact,  a directory.  Jeffer- 
son’s Works,  Y.  94,  568,  569. 


VOL.  II. 


410 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


settled  when  the  first  draft  of  the  Constitution  came 
from  the  committee  of  detail.  The  executive  func- 
tion, or  the  power  and  duty  of  causing  the  laws  to 
be  duly  and  faithfully  executed ; authority  to  give 
information  to  Congress  on  the  state  of  the  Union, 
and  to  recommend  measures  for  their  consideration ; 
power  in  certain  cases  to  convene  and  to  adjourn  the 
two  houses;  the  commissioning  of  all  officers,  and 
the  appointing  to  office  in  cases  not  otherwise  pro- 
vided for  by  the  Constitution ; the  receiving  of  am- 
bassadors ; the  granting  of  reprieves  and  pardons ; 
the  chief  command  of  the  army  and  navy  of  the 
United  States  and  of  the  militia  of  the  several  States, 
— were  all  provided  for.  But  the  foreign  relations 
of  the  country  were  committed  wholly  to  the  Senate, 
as  was  also  the  appointment  of  ambassadors  and  of 
judges  of  the  Supreme  Court.  It  is  not  necessary  to 
explain  again  the  grounds  on  which  the  Convention 
were  finally  obliged  to  alter  this  arrangement.  It 
will  be  convenient,  however,  to  take  up  the  several 
powers  and  functions  of  the  executive,  and  to  describe 
briefly  the  scope  and  purpose  ultimately  given  to 
each  of  them. 

In  the  plan  of  government  originally  proposed  by 
Governor  Randolph,  the  division  into  the  three  de- 
partments of  an  executive,  a legislative,  and  a judi- 
ciary, implied,  for  the  first  of  these  departments,  ac- 
cording to  the  theory  of  all  governments  which  are 
thus  separated,  power  to  carry  into  execution  the 
existing  laws.  This  government,  however,  was  to 
succeed  one  that  had  regulated  the  affairs  of  the 


Ch.  xiii.j 


POWERS  OF  THE  PRESIDENT. 


411 


Union  for  several  years,  in  which  all  the  powers 
vested  in  the  confederacy  of  the  States  were  held  and 
exercised  by  the  Congress  of  their  deputies;  and 
among  those  powers  was  that  of  declaring  war  and 
making  peace.  This  function  is,  moreover,  embraced 
in  the  general  powers  of  the  executive  department, 
in  most  governments  in  which  there  is  a regular  sep- 
aration of  that  department  from  the  legislative  and 
the  judiciary.  But  it  became  apparent  at  the  very 
commencement  of  the  process  of  forming  the  Consti- 
tution of  the  United  States,  that  the  question  wheth- 
er the  executive  should  be  intrusted  with  the  power 
of  war  and  peace  would  not  only  be  made,  hut  that 
the  system  would  have  to  be  so  arranged  as  to 
make  the  government,  in  this  particular,  an  exception 
to  the  general  rule.  This  was  partly  owing  to  an 
unwillingness  to  intrust  such  a power  to  one  person ; 
— or  even  to  a plurality  of  persons,  if  the  executive 
should  be  so  constituted.  If  to  the  general  powers 
of  executing  the  laws,  and  of  appointing  to  office, 
there  were  to  be  added  the  power  to  make  war  and 
peace,  and  the  whole  were  to  be  vested  in  a single 
magistrate,  it  was  rightly  said  that  the  government 
would  be  in  substance  an  elective  monarchy.  The 
power  of  the  executive,  over  the  external  relations  of 
the  country  at  least,  would  be  the  same,  in  kind  and 
in  extent,  as  it  is  in  constitutional  monarchies,  and 
the  sole  difference  would  be  that  the  supreme  magis- 
trate would  be  elective.  This  was  not  intended,  and 
was  not  admissible.  Still  another  reason  for  mak- 
ing the  government  of  the  United  States,  in  this 


412  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

feature,  an  exception  to  the  general  rule,  was  the 
necessity  for  giving  to  the  States,  in  their  corporate 
capacities,  some  control  over  the  foreign  relations  of 
the  country. 

Our  further  inquiries  concerning  this  part  of  the 
powers  and  functions  of  the  chief  magistrate  will 
only  need  to  extend  so  far  as  to  ascertain  what  is  the 
“ executive  power,”  which  the  Constitution  declares 
shall  be  “ vested  ” in  the  President.  In  the  resolu- 
tions, which  at  different  stages  had  previously  passed 
in  the  Convention,  this  had  been  described  as  a 
“ power  to  carry  into  execution  the  national  laws  ” ; 
and  this  description  was  regarded  as  including  such 
other  powers,  not  legislative  or  judicial  in  their  na- 
ture, as  might  from  time  to  time  be  delegated  to  the 
President  by  Congress.1  The  committee  of  detail,  in 
drafting  the  Constitution,  employed  the  phrase  “ ex- 
ecutive power  ” to  describe  Avhat  had  thus  been  des- 
ignated by  the  resolutions  sent  to  them ; and  as  the 
plan  of  government  which  they  presented  proposed 
to  make  the  declaration  of  a state  of  war  a legislative 
act,  the  prosecution  of  a Avar,  when  declared,  Avas  left 
to  fall  Avithin  the  executive  duties  as  part  of  the  “ ex- 
ecutive poAver.”  In  order,  moreover,  that  the  execu- 
tive duties  might  be  still  more  clearly  defined,  the 
committee  provided  that  the  President  “ shall  take 
care  that  the  laws  be  faithfully  executed,”  and  im- 
posed upon  him  the  same  obligation  by  the  force  of 
his  oath  of  office.  The  committee  ha\ring  been  di- 
rected to  provide  for  the  end  in  vieAV,  it  Avas  consid- 


1 Elliot,  V.  141,  142. 


Cu.  XIII.] 


POWERS  OF  THE  PRESIDENT. 


413 


ered  that  they  were  also  to  provide  the  means  by 
which  the  end  was  to  be  obtained.1  Accordingly, 
they  made  the  President  commander-in-chief  of  the 
army  and  navy,  and  of  the  militia  of  the  States  when 
called  into  the  service  of  the  United  States.  The 
President  appears,  therefore,  to  have  been  placed  in 
the  same  position  with  reference  to  the  means  to  be 
employed  in  the  discharge  of  all  his  executive  duties, 
when  force  may  in  his  judgment  be  necessary.  The 
declaration  of  a state  of  war  is  an  enactment  by  the 
legislative  branch  of  the  government ; the  creation 
of  laws  is  a function  that  belongs  exclusively  to  the 
same  department ; — but  when  a law  exists,  or  the 
state  of  war  exists,  it  is  for  the  President,  by  virtue 
of  his  executive  office,  and  of  his  position  as  com- 
mander-in-chief, to  employ  the  army  and  navy,  and 
the  militia  actually  called  into  the  service  of  the 
United  States,  in  the  execution  of  the  law,  or  the 
prosecution  of  hostilities,  in  such  a manner  as  he 
may  think  proper.2 

Closely  allied  to  the  power  of  executing  the  laws 
is  that  of  pardoning  offences,  and  relieving  against 
judicial  sentences.  This  power  was  originally  ex- 


1 Elliot,  Y.  343,  344. 

9 The  Constitution  having  vested 
in  Congress  power  to  provide  for 
calling  the  militia  into  the  service 
of  the  United  States,  to  execute 
the  laws,  suppress  insurrections, 
and  repel  invasions,  the  President 
cannot  call  out  the  militia  unless 
authorized  to  do  so  by  Congress. 
But  with  respect  to  the  employ- 


ment of  the  army  and  navy  for 
any  executive  purpose,  it  may  be 
doubted  whether  any  authority  from 
Congress  is  necessary;  as  it  may 
also  be  doubted  whether  Congress 
can  exercise  any  control  over  the 
President  in  the  use  of  the  land  or 
naval  forces,  either  in  the  execution 
of  the  laws,  or  in  the  discharge  of 
any  other  executive  duty. 


414 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


tended  by  the  committee  of  detail  to  all  offences 
against  the  United  States,  excepting  cases  of  impeach- 
ment, in  which  they  provided  that  the  pardon  of  the 
President  should  not  be  pleaded  in  bar.  This  would 
have  made  the  power  precisely  like  that  of  the  king 
of  England ; since,  by  the  English  law,  although  the 
king’s  pardon  cannot  be  pleaded  in  bar  of  an  im- 
peachment, he  may,  after  conviction,  pardon  the  of- 
fender. But  as  it  was  intended  in  the  Constitution 
of  the  United  States  to  limit  the  judgment  in  an  im- 
peachment to  a removal  from  office,  and  to  subsequent 
disqualification  for  office,  there  would  not  be  the 
same  reason  for  extending  to  it  the  executive  power 
of  pardon  that  there  is  in  England,  where  the  judg- 
ment is  not  so  limited.  The  Convention,  therefore, 
took  from  the  President  all  power  of  pardon  in  cases 
of  impeachment,  making  them  the  sole  exception  to 
the  power.1  A strong  effort  was  indeed  made  to  es- 
tablish another  exception  in  cases  of  treason,  upon 
the  ground,  chiefly,  that  the  criminal  might  be  the 
President’s  own  instrument  in  an  attempt  to  subvert 
the  Constitution.  But  since  all  agreed  that  a power 
of  pardon  was  as  necessary  in  cases  of  treason  as  in 
all  other  offences,  and  as  it  must  be  given  to  the  leg- 
islature, or  to  one  branch  of  it,  if  not  lodged  with  the 
executive,  a very  large  majority  of  the  States  pre- 
ferred to  place  it  in  the  hands  of  the  President,  espe- 
cially as  he  would  be  subject  to  impeachment  for  any 
participation  in  the  guilt  of  the  party  accused.2 

The  power  to  make  treaties,  which  had  been  given 


1 Elliot,  V.  480. 


2 Ibid.  549. 


Cei.  XIII.] 


POWERS  OF  THE  PRESIDENT. 


415 


to  the  Senate  by  the  committee  of  detail,  and  which 
was  afterwards  transferred  to  the  President,  to  be  ex- 
ercised with  the  advice  and  consent  of  two  thirds  of 
the  senators  present,  was  thus  modified  on  account 
of  the  changes  which  the  plan  of  government  had 
undergone,  and  which  have  been  previously  ex- 
plained. The  power  to  declare  war  having  been 
vested  in  the  whole  legislature,  it  was  necessary  to 
provide  the  mode  in  which  a war  was  to  be  termi- 
nated. As  the  President  was  to  be  the  organ  of 
communication  with  other  governments,1  and  as  he 
would  be  the  general  guardian  of  the  national  inter- 
ests, the  negotiation  of  a treaty  of  peace,  and  of  all 
other  treaties,  was  necessarily  confided  to  him.  But 
as  treaties  would  not  only  involve  the  general  inter- 
ests of  the  nation,  but  might  touch  the  particular 
interests  of  individual  States,  and,  whatever  their  ef- 
fect, were  to  be  part  of  the  supreme  law  of  the  land, 
it  was  necessary  to  give  to  the  senators,  as  the  direct 
representatives  of  the  States,  a concurrent  authority 
with  the  President  over  the  relations  to  be  affected 
by  them.  The  rule  of  ratification  suggested  by  the 
committee  to  whom  this  subject  was  last  confided 
was,  that  a treaty  might  be  sanctioned  by  two  thirds 
of  the  senators  present,  but  not  by  a smaller  number. 
A question  was  made,  however,  and  much  considered, 
whether  treaties  of  peace  ought  not  to  be  subjected 
to  a different  rule.  One  suggestion  was,  that  the 
Senate  ought  to  have  power  to  make  treaties  of 

1 It  was  to  be  one  of  the  distinct  ceive  ambassadoi’s  and  other  public 
functions  of  the  President  “ to  re-  ministers.” 


416 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


peace  without  the  concurrence  of  the  President,  on 
account  of  his  possible  interest  in  the  continuance  of 
a war  from  which  he  might  derive  power  and  impor- 
tance.1 But  an  objection,  strenuously  urged,  was, 
that,  if  the  power  to  make  a treaty  of  peace  were 
confided  to  the  Senate  alone,  and  a majority  or  two 
thirds  of  the  whole  Senate  were  to  be  required  to 
make  such  a treaty,  the  difficulty  of  obtaining  peace 
would  be  so  great,  that  the  legislature  would  be  un- 
willing to  make  war  on  account  of  the  fisheries,  the 
navigation  of  the  Mississippi,  and  other  important 
objects  of  the  Union.2  On  the  other  hand,  it  was 
said  that  a majority  of  the  States  might  be  a minor- 
ity of  the  people  of  the  United  States,  and  that  the 
representatives  of  a minority  of  the  nation  ought  not 
to  have  power  to  decide  the  conditions  of  peace. 

The  result  of  these  various  objections  was  a deter- 
mination on  the  part  of  a large  majority  of  the  States 
not  to  make  treaties  of  peace  an  exception  to  the 
rule,  but  to  provide  a uniform  rule  for  the  ratifica- 
tion of  all  treaties.  The  rule  of  the  Confederation, 
which  had  required  the  assent  of  nine  States  in  Con- 
gress to  every  treaty  or  alliance,  had  been  found  to 
work  great  inconvenience ; as  any  rule  must  do, 
which  should  give  to  a minority  of  States  power  to 
control  the  foreign  relations  of  the  country.  The 
rule  established  by  the  Constitution,  while  it  gives 
to  every  State  an  opportunity  to  be  present  and  to 
vote,  requires  no  positive  quorum  of  the  Senate 
for  the  ratification  of  a treaty ; it  simply  demands 

1 Mr.  Madison  so  thought.  Elliot,  V.  524.  2 Ibid. 


Ch.  XIII.] 


POWERS  OF  THE  PRESIDENT. 


417 


that  the  treaty  shall  receive  the  assent  of  two  thirds 
of  all  the  members  who  may  be  present.  The  theory 
of  the  Constitution  undoubtedly  is,  that  the  Presi- 
dent represents  the  people  of  the  United  States  gen- 
erally, and  the  senators  represent  their  respective 
States ; so  that,  by  the  concurrence  which  the  rule 
thus  requires,  the  necessity  for  a fixed  quorum  of  the 
States  is  avoided,  and  the  operations  of  this  function 
of  the  government  are  greatly  facilitated  and  simpli- 
fied.1 The  adoption,  also,  of  that  part  of  the  rule 
which  provides  that  the  Senate  may  either  “ advise 
or  consent,”  enables  that  body  so  far  to  initiate  a 
treaty,  as  to  propose  one  for  the  consideration  of 
the  President;  — although  such  is  not  the  general 
practice. 

Having  already  described  the  changes  which  took 
from  the  Senate  alone  the  appointment  of  the  judges 
of  the  Supreme  Court  and  ambassadors,  it  is  only 
necessary  in  this  connection  to  notice  the  manner  in 
which  the  power  of  appointment  to  all  offices  re- 
ceived its  final  scope  and  limitations.  The  plan  re- 
ported by  the  committee  of  detail  had,  as  we  have 
repeatedly  seen,  vested  the  appointment  of  ambassa- 
dors and  judges  of  the  Supreme  Court  in  the  Senate, 
and  had  given  to  the  President  the  sole  voice  in  the 
appointment  of  all  other  officers  of  the  United  States. 
The  adjustment  afterwards  made  gave  the  nomination 

1 The  several  votes  taken  upon  the  text.  See  the  proceedings, 
different  aspects  of  the  rule  for  the  September  7,  8.  Elliot,  V.  524, 
ratification  of  treaties  make  the  the-  526. 
ory  quite  clearly  what  is  stated  in 
53 


VOL.  II. 


418 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  all  officers  to  the  President,  but  required  the  ad- 
vice and  consent  of  the  Senate  to  complete  an  ap- 
pointment. Two  inconveniences  were  likely  to  be 
experienced  under  this  arrangement.  Many  inferior 
offices  might  be  created,  which  it  would  be  unneces- 
sary and  inexpedient  to  fill  by  this  process  of  nomi- 
nation by  the  President  and  confirmation  by  the 
Senate;  and  vacancies  might  occur  in  all  offices, 
which  would  require  to  be  filled  while  the  Senate 
was  not  in  session.  To  obviate  these  inconveniences, 
the  Congress  were  authorized  to  vest  the  appointment 
of  such  inferior  officers  as  they  might  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments ; and  power  was  given  to  the 
President  to  fill  up  all  vacancies  that  might  happen 
during  the  recess  of  the  Senate,  by  granting  commis- 
sions which  should  expire  at  the  end  of  their  next 
session.1  In  order  to  restrain  the  President  from 
practically  creating  offices  by  the  power  of  appoint- 
ment, his  power  was  limited  to  “ offices  created  by 
law,”  and  to  those  specially  enumerated  in  the  Con- 
stitution.2 


1 This  power  embraces  of  course 
only  those  offices  the  appointment 
to  which  is  vested  in  the  President 
and  Senate. 

2 The  Constitution  (Art.  H. 
§ 2)  seems  to  contemplate  ambas- 
sadors, other  public  ministers  and 
consuls,  and  judges  of  the  Supreme 
Court,  as  officers  to  exist  under  the 
Constitution,  whether  provision  is 
or  is  not  made  by  law  for  their  ap- 
pointment and  functions.  It  is  made 


the  imperative  duty  of  the  President 
to  nominate,  and  with  the  consent 
of  the  Senate  to  appoint  them. 
Hence  it  has  been  supposed  that 
the  President  can  appoint  a foreign 
minister  without  waiting  to  have 
his  particular  office  regulated  or 
established  by  law ; and  as  the 
President  conducts  the  foreign  in- 
tercourse of  the  country,  he  could 
prescribe  the  duties  of  such  a minis- 
ter. In  like  manner,  with  the  con- 


Ch.  XIII J 


POWERS  OF  THE  PRESIDENT. 


419 


In  addition  to  these  powers,  the  committee  of  detail 
had  provided  for  certain  direct  relations,  of  a special 
nature,  between  the  President  and  the  Congress. 
One  of  these  was  to  consist  in  giving  to  the  Congress 
from  time  to  time  information  of  the  state  of  the 
Union,  and  in  recommending  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expe- 
dient. The  other  was  embraced  in  the  power  to 
convene  the  two  houses  on  extraordinary  occasions ; 
and,  whenever  there  should  be  a disagreement  be- 
tween them  with  respect  to  the  time  of  adjournment, 
to  adjourn  them  to  such  time  as  he  shall  think  prop- 
er. The  latter  power  is  to  be  taken  in  connection 
with  the  clause  which  requires  Congress  to  meet  at 
least  once  in  every  year,  and  on  the  first  Monday  in 
December,  unless  a different  day  shall  be  appointed 
by  law.  Neither  the  two  houses  by  agreement,  nor 
the  President  in  case  of  a disagreement,  can  fix  on  a 
time  of  adjournment  beyond  the  day  of  the  com- 
mencement of  the  next  regular  session.  But  subject 
to  this  restriction,  the  power  of  the  President  to  deter- 
mine the  time  at  which  the  two  houses  shall  reassem- 
ble, when  they  do  not  agree  upon  a time,  extends  to 
every  session  of  Congress,  whether  it  be  regular  or 
“ extraordinary.”  1 

sent  of  the  Senate,  the  President  ute  the  judicial  power,  the  Court, 
could  appoint  a judge  of  the  Su-  when  so  appointed,  would  have  on- 
preme  Court,  and  would  be  hound  ly  the  functions  conferred  by  the 
to  do  so,  although  no  act  of  Con-  Constitution,  namely,  original  juris- 
gress  existed  providing  for  the  or-  diction  in  certain  enumerated  cases, 
ganization  and  duties  of  the  Court.  1 In  the  text  of  the  Constitution, 
But  as  the  President  cannot  distrib-  the  President’s  power  to  adjourn 


420 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  two  houses  of  Congress  in  ease 
of  a disagreement  follows  immedi- 
ately after  his  power  to  convene 
them  on  “ extraordinary  occa- 
sions ” ; and  it  has,  therefore,  been 
suggested  that  his  power  to  adjourn 
them  is  confined  to  cases  where 
they  have  been  “ extraordinarily  ” 
convened  under  the  first  power. 
But  it  is  to  be  observed  that  the 
whole  of  the  third  section  of  Article 
II.  contains  an  enumeration  of  sep- 
arate powers  of  the  President,  re- 
cited seriatim.  The  power  to  con- 
vene Congress  is  one  power ; and  it 
extends  only  to  “extraordinary” 
occasions,  because  the  Constitution 
itself,  or  a law,  convenes  them  at  a 


fixed  period,  and  thus  makes  the 
ordinary  occasions.  But  the  power 
to  adjourn  the  two  houses  to  a par- 
ticular time,  in  cases  of  disagree- 
ment as  to  the  time,  is  a separate 
and  general  power,  because  the 
reason  for  which  it  was  given  at  all 
applies  equally  to  all  sessions.  That 
reason  is,  that  there  may  be  a peace- 
ful termination  of  what  would  oth- 
therwise  be  an  endless  and  danger- 
ous controversy.  Both  Hamilton 
in  the  Federalist  and  Judge  Story 
in  his  Commentaries  have  treated 
this  as  a separate  and  general  pow- 
er. (The  Federalist,  No.  77.  Sto- 
ry on  the  Constitution,  § 15G3.) 


CHAPTER  XIY. 


Report  of  the  Committee  of  Detail,  continued.  — Forma- 
tion of  the  Judicial  Power. 

There  now  remains  to  be  described  the  full  con- 
ception and  creation  of  the  third  department  of  the 
government,  its  judicial  power. 

The  distribution  of  the  powers  of  government, 
when  its  subjects  are  to  sustain  no  relation  to  any 
other  sovereignty  than  that  whose  fundamental  laws 
it  is  proposed  to  ordain,  is  a comparatively  easy  task. 
In  such  a government,  when  the  theoretical  division 
into  the  legislative,  executive,  and  judicial  functions 
is  once  adopted,  the  objects  to  which  each  is  to  be 
directed  fall  readily  into  their  appropriate  places. 
All  that  is  necessary  is,  to  see  that  these  depart- 
ments do  not  encroach  upon  the  rights  and  duties 
of  each  other.  There  is,  at  least,  no  other  power, 
claiming  the  obedience  of  the  same  people,  whose 
just  authority  it  is  necessary  to  regard,  and  on  whose 
proper  domain  no  intrusion  is  to  be  permitted. 

How  different  is  the  task,  when  a government, 
either  federal  or  national,  is  to  be  created,  for  a 
people  inhabiting  distinct  political  States,  whose 
sovereign  power  is  to  remain  for  many  purposes 
supreme  over  their  respective  subjects ; when  the 


422 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


individual  is  to  be  under  rules  of  civil  duty  de- 
clared by  different  public  organs ; and  when  the 
object  is  to  provide  a judicial  system  through  which 
this  very  difference  of  authority  may  be  made  to 
work  out  the  ends  of  social  order,  harmony,  and 
peace ! This  difficult  undertaking  was  imposed 
upon  the  framers  of  the  Constitution  of  the  United 
States,  and  it  was  by  far  the  most  delicate  and  dif- 
ficult of  all  their  duties.  It  was  comparatively  easy 
to  agree  on  the  powers  which  the  people  of  the 
States  ought  to  confer  on  the  general  government, 
to  define  the  separate  functions  of  the  legislature 
and  the  executive,  and  to  lay  down  certain  rules 
of  public  policy  which  should  restrain  the  States 
in  the  exercise  of  their  separate  powers  over  their 
own  citizens.  But  to  construct  a judicial  power 
within  the  general  government,  and  to  clothe  it 
with  attributes  which  would  enable  it  to  secure  the 
supremacy  of  the  general  Constitution  and  of  all  its 
provisions ; to  give  it  the  exact  authority  that  would 
maintain  the  dividing  line  between  the  powers  of 
the  nation  and  those  of  the  State,  and  to  give  to  it 
no  more ; and  to  add  to  these  a faculty  of  dispensing 
justice  to  foreigners,  to  citizens  of  different  States, 
and  among  the  sovereign.  States  themselves,  with  a 
more  even  hand  and  with  a more  assured  certainty 
of  the  great  ends  of  justice  than  any  State  power 
could  furnish,  — these  were  objects  not  readily  or 
easily  to  be  attained.  Yet  they  were  attained  with 
wonderful  success.  The  judicial  poAver  of  the  United 
States,  considered  with  reference  to  its  adaptation  to 


Cii.  XIV.]  SCOPE  OF  THE  JUDICIAL  POWER. 


423 


the  purposes  of  its  creation,  is  one  of  the  most  ad- 
mirable and  felicitous  structures  that  human  govern- 
ments have  exhibited. 

The  groundwork  of  its  formation  has  been  partly 
described  in  a previous  chapter,  where  some  of  the 
principles  are  stated,  which  had  been  arrived  at  as 
being  necessary  to  its  great  purposes.  These  prin- 
ciples related  to  the  persons  who  were  to  exercise 
its  functions,  and  to  the  jurisdiction  or  authority 
■which  they  were  to  possess.  With  respect  to  the 
persons  who  were  to  exercise  the  judicial  power, 
the  result  that  had  been  reached  when  the  first 
draft  of  the  Constitution  was  to  be  prepared  had 
fixed  the  tenure  of  good  behavior  for  their  office, 
and  had  placed  their  salaries,  when  once  estab- 
lished, beyond  the  reach  of  any  power  of  diminu- 
tion by  the  legislature.  It  had  also  been  determined 
that  there  should  be  one  supreme  tribunal,  under 
the  Constitution,  and  that  the  legislature  should 
have  power  to  establish  inferior  tribunals.  But 
nothing  more  precise  had  been  arrived  at  respect- 
ing jurisdiction,  than  the  broad  principles  which 
declared  that  it  should  extend  to  cases  arising  under 
laws  passed  by  the  general  legislature,  and  to  such 
other  questions  as  might  touch  the  national  peace 
and  harmony.  The  committee  of  detail  were  to 
give  effect  to  this  declaration.  Their  scheme  pro- 
vided, under  the  first  of  these  heads,  that  the  juris- 
diction should  embrace  cases  arising  under  the  laws 
of  the  United  States ; and  as  questions  touching  the 
national  peace  and  harmony,  they  enumerated  all 


424 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


cases  affecting  ambassadors,  other  public  ministers, 
and  consuls ; impeachments  of  officers  of  the  United 
States;  all  cases  of  admiralty  and  maritime  jurisdic- 
tion ; controversies  between  two  or  more  States,  ex- 
cepting such  as  might  regard  territory  or  jurisdiction; 
controversies  between  a State  and  citizens  of  another 
State,  between  citizens  of  different  States,  and  be- 
tween a State  or  the  citizens  thereof  and  foreign 
states,  citizens,  or  subjects.  In  cases  of  impeach- 
ment, cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls,  and  those  in  which  a State  should 
be  party,  they  assigned  the  original  jurisdiction  to 
the  Supreme  Court.  In  all  the  other  cases  enu- 
merated, the  jurisdiction  of  the  supreme  tribunal 
was  to  be  appellate  only,  with  such  exceptions  and 
regulations  as  the  legislature  might  make ; and  the 
original  jurisdiction  was  left  to  be  assigned  by  the 
legislature  to  such  inferior  tribunals  as  they  might 
from  time  to  time  create.  The  trial  of  all  criminal 
offences,  except  in  cases  of  impeachment,  wTas  to  be 
in  the  State  where  they  had  been  committed,  and 
was  to  be  by  jury.  Controversies  between  States 
respecting  jurisdiction  or  territory,  and  controversies 
concerning  lands  claimed  under  grants  of  different 
States,  were  to  be  tried  by  the  Senate,  and  were  con- 
sequently excluded  from  the  judicial  power. 

This  plan,  when  compared  with  the  full  outline 
of  the  jurisdiction,  as  it  vTas  finally  established,  pre- 
sented several  remarkable  defects.  In  the  first  place, 
it  was  silent  with  respect  to  the  important  distinction, 
familiar  to  the  people  of  the  United  States,  between 


Ch.  XIV.]  SCOPE  OF  THE  JUDICIAL  POWER.  425 

proceedings  in  equity  and  proceedings  at  common 
law.  This  distinction,  which  extends  not  only  to 
the  forms  of  pleading,  but  to  the  principles  of  decis- 
ion, the  mode  of  trial,  and  the  nature  of  the  remedy, 
had  been  brought  by  the  settlers  of  most  of  the  Col- 
onies from  England,  and  had  been  perpetuated  in 
their  judicial  institutions.  It  existed  in  most  of  the 
States,  at  the  time  of  the  formation  of  the  national 
Constitution,  and  it  was,  in  fact,  a characteristic  fea- 
ture of  the  only  system  of  judicature  which  the 
American  people  had  known,  excepting  in  their 
courts  of  admiralty.  Although  the  institutions  of 
the  States  differed  in  the  degree  in  which  they  had 
adopted  and  followed  it,  the  basis  of  their  jurispru- 
dence and  forms  of  proceeding  was  the  common  law, 
as  derived  from  its  English  sources  and  modified  by 
their  own  customs  or  legislation,  with  more  or  less 
of  that  peculiar  and  more  ample  relief  which  is  af- 
forded by  the  jurisprudence  and  remedy  known  in 
the  English  system  under  the  name  of  equity. 

Since  the  judicial  power  of  the  United  States  was 
to  be  exercised  over  a people  whose  judicial  habits 
were  thus  fixed ; since  it  must,  to  some  extent,  take 
cognizance  of  rights  that  would  have  to  be  adjudi- 
cated in  accordance  with  the  jurisprudence  under 
which  they  had  arisen ; and  since  the  individuals 
who  would  have  a title  to  enter  its  tribunals  might 
reasonably  demand  remedies  as  ample  as  a judicature 
of  English  origin  could  furnish,  it  was  highly  expe- 
dient that  the  Constitution  should  fully  adopt  the 
main  features  of  that  judicature.  It  is  quite  true, 

54 


VOL.  II. 


426 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


that  a provision  in  the  Constitution  extending  the 
judicial  power  to  “all  cases”  affecting  certain  persons 
or  certain  rights,  might  be  regarded  by  the  legisla- 
ture as  a sufficient  authority  for  the  establishment 
of  inferior  courts  with  both  a legal  and  an  equitable 
jurisdiction,  and  might  be  considered  to  confer  such 
a double  jurisdiction  on  the  supreme  tribunal  con- 
templated by  the  Constitution.  But  the  text  of  the 
Constitution  itself  would  be  the  source  to  which  the 
people  of  the  United  States  would  look,  when  called 
upon  to  adopt  it,  for  the  benefits  which  they  were  to 
derive  from  it,  and  there  would  be  no  part  of  it 
which  they  would  scrutinize  more  closely  than  that 
which  was  to  establish  the  judicial  power  of  the  new 
government.  If  they  found  in  it  no  imperative  dec- 
laration making  it  the  duty  of  Congress  to  provide 
for  a jurisdiction  in  equity  as  well  as  at  law,  and  no 
express  adoption  of  such  a jurisdiction  for  the  su- 
preme tribunal,  they  might  well  say  that  the  charac- 
ter of  the  judicial  power  was  left  to  the  accidental 
choice  of  Congress,  or  to  doubtful  interpretation,  in- 
stead of  being  expressly  ordained  in  its  full  and  es- 
sential proportions  by  the  people.  If  a citizen  of 
one  State  were  to  pursue  a remedy  in  the  courts  of 
the  Union  against  a citizen  of  another  State,  or  if 
one  State  should  have  a judicial  controversy  with 
another,  that  would  be  a very  imperfect  system  of 
judicature  which  should  leave  the  form  and  extent 
of  the  remedy  to  be  determined  by  the  local  law 
where  the  process  was  to  be  instituted,  or  which 
should  confine  the  relief  to  the  forms  and  proceed- 


Ch.  XIV.]  SCOPE  OF  THE  JUDICIAL  POWER. 


427 


ings  of  the  common  law.  If  the  appellate  jurisdic- 
tion of  the  supreme  national  tribunal  were  to  be  ex- 
ercised over  any  class  of  controversies  originating  in 
the  State  courts,  it  was  extremely  important  that  the 
Constitution  should  expressly  ascertain  whether  suits 
at  law,  or  suits  in  equity,  or  both,  were  to  be  em- 
braced within  that  appellate  power.  For  these  rea- 
sons, it  became  necessary  for  the  Convention  to  sup- 
ply this  defect,  by  extending  the  judicial  power, 
both  in  equity  and  at  law,  to  the  several  cases  em- 
braced in  it. 

Another  defect  in  the  report  of  the  committee,  — 
or  what  was  regarded  as  a defect  when  the  Constitu- 
tion was  ratified,  — and  one  which  the  Convention 
did  not  supply,  was  in  the  omission  of  any  express 
provision  for  trial  by  jury  in  civil  cases.  Such  a 
provision  was  supplied  by  an  amendment  proposed 
by  the  first  Congress  that  assembled  under  the  Con- 
stitution, and  adopted  in  1791 ; but  it  was  regarded 
by  the  framers  of  the  Constitution  as  inexpedient, 
on  account  of  the  different  construction  of  juries  in 
the  different  States,  and  the  diversity  of  their  usages 
with  respect  to  the  cases  in  which  trial  by  jury  was 
used.1  It  is  quite  possible  that,  after  the  Constitu- 
tion had  declared  that  the  jurisdiction  of  the  nation- 
al tribunals  should  extend  to  all  cases  “ in  law  ” af- 
fecting certain  parties  or  rights,  Congress  would  not 
have  been  at  liberty  to  establish  inferior  tribunals 
for  the  trial  of  cases  “in  law”  by  any  other  method 
than  according  to  the  course  of  the  common  law, 


l Elliot,  V.  550. 


428 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


which  requires  that  the  fact  in  such  cases  shall  be 
tried  by  a jury.  But  the  objection  which  afterwards 
prevailed  was  connected,  as  we  shall  presently  see, 
with  what  was  regarded  as  a dangerous  ambiguity 
in  the  clause  of  the  Constitution  which  gave  to  the 
Supreme  Court  its  appellate  jurisdiction  both  as  to 
law  and  fact. 

The  plan  of  the  committee  of  detail  contemplated 
a supreme  tribunal  with  original  jurisdiction  over  a 
few  of  the  cases  within  the  judicial  power,  and  ap- 
pellate jurisdiction  over  all  the  other  cases  enumer- 
ated. Inquiry  was  made  in  the  Convention,  whether 
this  appellate  jurisdiction  was  intended  to  embrace 
fact  as  well  as  law,  and  to  extend  to  cases  of  com- 
mon law  as  well  as  to  those  of  equity  and  admiralty 
jurisdiction.  The  answer  was  given,  that  such  was 
the  intention  of  the  committee,  and  the  jurisdiction 
of  the  federal  court  of  appeals,  under  the  Confedera- 
tion, was  referred  to  as  having  been  so  construed. 
The  words  “both  as  to  law  and  fact”  were  thereupon 
introduced  into  the  description  of  the  appellate 
power,  by  unanimous  consent.1  Various  explana- 
tions were  subsequently  given,  when  the  Constitution 
came  before  the  people,  of  the  force  and  meaning 
of  these  words.  The  most  probable  and  the  most 
acute  of  these  explanations  was  that  made  by  Ham- 
ilton in  the  Federalist,2  which  limited  the  effect  of 
the  words,  in  reference  to  common  law  cases,  to  so 
much  cognizance  of  the  facts  involved  in  a record  as 
is  implied  in  the  application  of  the  law  to  them  by 


1 Elliot,  V.  483. 


2 No.  81. 


Ch.  XIV.]  SCOPE  OF  THE  JUDICIAL  POWER. 


429 


the  appellate  tribunal.  But  the  truth  was,  the 
words  were  of  very  comprehensive  import.  While 
they  were  used  in  order  to  save  to  the  Supreme  Court 
power  to  revise  the  facts  in  equity  and  admiralty 
proceedings,  they  made  no  distinction,  and  imposed 
upon  Congress  no  duty  to  make  a distinction,  be- 
tween cases  in  equity  and  admiralty,  and  cases  at 
common  law ; and  although  it  might  be  true,  that 
in  some  States  the  facts  in  all  cases  were  tried  by  a 
jury,  and  that  in  some  cases  so  tried  there  ought  to 
be  a power  to  revise  the  facts,  yet  it  was  not  conced- 
ed that  such  a power  ought  to  exist  over  the  verdicts 
of  juries  in  cases  of  common  law  jurisdiction.  This 
explanation  will  serve  to  show  the  double  purpose 
of  the  amendment  made  in  1791.  The  people  of 
many  of  the  States  required  an  express  guaranty  that 
trial  by  jury  should  be  preserved  in  suits  at  common 
law,  and  that  the  facts  once  tried  by  a jury  should 
not  be  re-examined  otherwise  than  according  to  the 
rules  of  the  common  law,  which  have  established 
certain  well-defined  limits  to  the  power  of  an  appel- 
late tribunal  concerning  the  facts  appearing  to  have 
been  found  by  a jury.1 

There  was  still  another  omission  in  the  report  of 
the  committee,  of  great  magnitude.  They  had  in- 
cluded in  the  judicial  power  cases  arising  under  the 
laws  of  the  United  States,  but  they  had  not  embraced 
cases  arising  under  the  Constitution  and  under  trea- 
ties. At  the  same  time,  the  Constitution  was  to 
embrace  not  only  the  powers  of  the  general  govem- 
1 See  the  seventh  Amendment. 


430 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


ment,  but  also  special  restrictions  upon  the  powers 
of  the  States ; and  not  only  the  Constitution  itself, 
but  the  laws  made  in  pursuance  of  its  provisions, 
and  all  treaties  made  under  the  authority  of  the 
United  States,  were  to  be  the  supreme  law  of  the 
land.  This  supremacy  could  only  be  enforced  by 
some  prescribed  action  of  some  department  of  the 
general  government.  The  idea  of  a legislative  ar- 
rest, or  veto,  of  State  laws  supposed  to  be  in  conflict 
with  some  provision  of  the  national  Constitution,  or 
with  a treaty  or  a law  of  the  United  States,  had  been 
abandoned.  The  conformity,  moreover,  of  the  laAvs 
of  Congress  to  the  provisions  of  the  Constitution, 
could  only  be  determined  by  the  judicial  power, 
when  drawn  into  question  in  a judicial  proceeding. 
The  just  and  successful  operation  of  the  Constitu- 
tion, therefore,  required  that,  by  some  comprehensive 
provision,  all  judicial  cases1  arising  under  the  Con- 
stitution, laws,  or  treaties  of  the  United  States  — 
whether  the  question  should  grow  out  of  the  action 
of  a State  legislature,  or  the  action  of  any  depart- 
ment of  the  general  government  — should  be  brought 
within  the  cognizance  of  the  national  judiciary.  This 
provision  was  added  by  the  Convention.  It  com- 
pleted the  due  proportions  and  efficacy  of  this  branch 
of  the  judicial  power. 

1 By  “ cases  arising  under  tlie  dicial  nature  ; that  is,  cases  which, 
Constitution,”  &c.  the  framers  of  having  assumed  the  form  of  judi- 
that  instrument  did  not  mean  all  cial  proceedings  between  party  and 
cases  in  which  any  department  of  party,  involve  the  construction  or 
the  government  might  have  occa-  operation  of  the  Constitution  of  the 
sion  to  act  under  provisions  of  the  United  States.  Elliot,  V.  483. 
Constitution,  but  all  cases  of  a ju- 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER. 


431 


TriaLby  jury  of  all  criminal  offences  (except  in 
cases  of  impeachment)  had  been  provided  for  by  the 
committee  of  detail,  and  such  trial  was  to  be  had  in 
the  State  where  the  offence  had  been  committed. 
The  Convention,  in  order  to  secure  the  same  right 
of  a jury  trial  in  cases  where  the  offence  had  been 
committed  out  of  any  State,  provided  that  the  trial 
should  be  at  such  place  or  places  as  the  Congress 
might  by  law  have  directed.1 

These  additions,  with  one  other  which  included 
within  the  judicial  power  all  cases  to  which  the 
United  States  might  be  party;  the  transfer  of  the 
trial  of  impeachments  to  the  Senate ; and  the  trans- 
fer  to  the  judiciary  of  controversies  between  the 
States  respecting  jurisdiction  or  territory,  and  con- 
troversies respecting  land  titles  claimed  under  the 
grants  of  different  States,  — were  the  principal 
changes  and  improvements  made  in  the  plan  of 
the  committee. 

The  details  of  the  arrangement  will  perhaps  fail 
to  interest  the  general  reader.  Yet  I cannot  but 
think  that  to  understand  the  purpose  and  operation 
of  this  department  of  the  national  government  would 
be  a very  desirable  acquisition  for  any  of  my  readers 
not  already  possessed  of  it ; and  having  completed 
the  description  of  the  mode  in  which  the  judicial 
power  was  constructed,  I shall  conclude  this  part 
of  the  subject  with  a brief  statement  of  its  constitu- 
tional functions. 

One  of  the  leading  purposes  for  which  this  branch 

1 Elliot,  V.  484.  Constitution,  Art.  HI.  § 2,  clause  3. 


432 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  the  government  was  established,  was  to  enable  the 
Constitution  to  operate  upon  individuals,  by  securing 
their  obedience  to  its  commands,  and  by  protecting 
them  in  the  enjoyment  of  the  rights  and  privileges 
which  it  confers.  The  government  of  the  United 
States  was  eminently  intended,  among  other  pur- 
poses, to  secure  certain  personal  rights,  and  to  exact 
certain  personal  duties.  The  Constitution  confers 
on  the  general  government  a few  special  powers,  but 
it  confers  them  in  order  that  the  general  government 
may  accomplish  for  the  people  of  each  State  the  ad- 
vantages and  blessings  for  which  the  State  govern- 
ments are  presumed  to  be,  and  have  in  fact  proved 
to  be,  inadequate.  It  lays  upon  the  governments 
and  people  of  the  States  certain  restrictions,  and  it 
lays  them  for  the  protection  of  the  people  against 
an  exercise  of  State  power  deemed  injurious  to  the 
general  welfare.  The  government  of  the  United 
States,  therefore,  is  not  only  a government  which 
seeks  to  protect  the  welfare  and  happiness  of  the 
people  who  live  under  it,  but  it  is  so  constructed 
as  to  make  its  citizens  directly  and  individually  its 
subjects,  exacting  of  them  certain  duties,  and  secur- 
ing to  them  certain  rights.  It  comes  into  this  rela- 
tion by  reason  of  its  supreme  legislative  power  over 
certain  interests,  and  the  supreme  authority  of  its  re- 
strictions upon  the  powers  of  the  States ; and  it  is 
enabled  to  make  this  relation  effectual  through  its 
judicial  department,  which  can  take  cognizance  of 
every  duty  that  the  Constitution  exacts  and  of  every 
right  that  it  confers,  whenever  they  have  assumed  a 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER.  433 

shape  in  which  judicial  power  can  act  upon  them. 
Let  us  take,  as  illustrations  of  this  function  of  the 
national  judiciary,  a single  instance  of  the  obedience 
required  by  the  Constitution,  and  also  one  of  a right 
which  it  protects.  The  Constitution  empowers  Con- 
gress to  lay  and  collect  duties ; which,  when  they 
are  laid  and  incurred,  become  a debt  due  from  the 
individual  owner  of  the  property  on  which  they 
are  assessed  to  the  general  government.  Payment, 
in  disputed  cases,  might  have  been  left  to  be  en- 
forced by  executive  power ; but  the  Constitution 
has  interposed  the  judicial  department,  as  the  more 
peaceful  agent,  which  can  at  once  adjudicate  be- 
tween the  government  and  the  citizen,  and  compel 
the  payment  of  what  is  found  due.  Again,  the  Con- 
stitution provides  that  no  State  shall  pass  any  law 
impairing  the  obligation  of  contracts.  An  individual 
supposing  himself  to  be  aggrieved  by  such  a law 
might  have  been  left  to  obtain  such  redress  as  the 
judicial  or  legislative  authorities  of  the  State  might 
be  disposed  to  give  him ; but  the  Constitution  en- 
ables him  finally  to  resort  to  the  national  judiciary, 
which  has  power  to  relieve  him  against  the  operation 
of  the  law  upon  his  personal  rights,  while  the  law 
itself  may  be  left  upon  the  statute-book  of  the  State. 

But  while  the  judicial  department  of  the  general 
government  was  thus  designed  to  enforce  the  duties 
and  protect  the  rights  of  individuals,  it  is  obvious 
that,  in  a system  of  government  where  such  rights 
and  duties  are  to  be  ascertained  by  the  provisions  of 
a fundamental  law  framed  for  the  express  purpose 

VOL.  II.  55 


434 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  defining  the  powers  of  the  general  government 
and  of  each  of  its  departments,  and  establishing  cer- 
tain limits  to  the  powers  of  the  States,  the  mere  act 
of  determining  the  existence  of  such  rights  or  duties 
may  involve  an  adjudication  upon  the  question, 
whether  acts  of  legislative  or'  executive  power  are 
in  conformity  with  the  requirements  of  the  funda- 
mental law.  On  the  one  hand,  the  judicial  depart- 
ment is  to  see  that  the  legislative  authority  of  the 
Union  does  not  exact  of  individuals  duties  which  are 
not  within  its  prescribed  powers,  and  that  no  depart- 
ment of  the  general  government  encroaches  upon  the 
rights  of  any  other,  or  upon  the  rights  of  the  States ; 
and,  on  the  other  hand,  it  has  to  see  that  the  legisla- 
tive authority  of  the  States  does  not  encroach  upon 
the  powers  conferred  upon  the  general  government, 
or  violate  the  rights  which  the  Constitution  secures 
to  the  citizen.  All  this  may  be,  and  constantly  is, 
involved  in  judicial  inquiries  into  the  rights,  powers, 
functions,  and  duties  of  private  citizens  or  public 
officers;  and  therefore,  in  order  that  the  judicial 
power  should  be  able  effectually  to  discharge  its 
functions,  it  must  possess  authority,  for  the  pur- 
poses of  the  adjudication,  to  declare  even  an  act  of 
legislation  to  be  void,  which  conflicts  with  any  pro- 
vision of  the  Constitution. 

There  were  great  differences  of  opinion  in  the 
Convention  upon  the  expediency  of  giving  to  the 
judges,  as  expositors  of  the  Constitution,  poAver  to 
declare  a law  to  be  void ; 1 and  undoubtedly  such  a 


1 Elliot,  V.  429. 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER. 


435 


power,  if  introduced  into  some  governments,  would 
be  legislative  in  its  nature,  whether  the  persons  who 
were  to  exercise  it  should  be  called  judges,  or  be 
clothed  with  the  functions  of  a council  of  revision. 
But  under  a limited  and  written  constitution,  such 
a power,  when  given  in  the  form  and  exercised  in 
the  mode  provided  for  in  the  Constitution  of  the 
United  States,  is  strictly  judicial.  This  is  apparent 
from  the  question  that  is  to  be  determined.  It  arises 
in  a judicial  controversy  respecting  some  right  as- 
serted by  or  against  an  individual ; and  the  matter 
to  be  determined  is  whether  an  act  of  legislation, 
supposed  to  govern  the  case  as  law,  is  itself  in  con- 
formity to  the  supreme  law  of  the  Constitution.  In 
a government  constituted  like  ours,  this  question 
must  be  determined  by  some  one  of  its  departments. 
If  it  be  left  with  the  executive  to  decide  finally  what 
laws  shall  be  executed,  because  they  are  consistent 
with  the  Constitution,  and  what  laws  shall  be  sus- 
pended, because  they  violate  the  Constitution,  this 
practical  inconvenience  may  arise,  namely,  that  the 
decision  is  made  upon  the  abstract  question,  before 
a case  to  be  governed  by  the  law  has  arisen.  If  the 
legislature  were  empowered  to  determine,  finally, 
that  the  laws  which  they  enact  are  constitutional, 
the  same  practical  difficulty  would  exist ; and  the 
individual,  whose  rights  or  interests  may  be  affected 
by  a law,  when  put  into  operation,  would  have  no 
opportunity  to  be  heard  upon  what  in  our  form  of 
government  is  a purely  juridical  question,  on  which 
every  citizen  should  be  heard,  if  he  desires  it,  before 


436 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  law  is  enforced  in  his  case.  On  the  other  hand, 
if  the  final  and  authoritative  determination  is  post- 
poned until  the  question  arises  in  the  course  of  a 
judicial  controversy  respecting  some  right  or  duty  or 
power  of  an  individual  who  is  to  be  affected  by  the 
law,  or  who  acts  under  it,  the  question  itself  is  pro- 
pounded not  in  the  abstract,  but  in  the  concrete ; not 
in  reference  to  the  bearing  of  the  law  upon  all  possi- 
ble cases,  but  to  its  bearing  upon  the  facts  of  a single 
case.  In  this  aspect,  the  question  is  of  necessity 
strictly  judicial.  To  withhold  from  the  citizen  a 
right  to  be  heard  upon  the  question  which  in  our  ju- 
risprudence is  called  the  constitutionality  of  a law, 
when  that  law  is  supposed  to  govern  his  rights  or 
prescribe  his  duties,  would  be  as  unjust  as  it  would 
be  to  deprive  him  of  the  right  to  be  heard  upon  the 
construction  of  the  law,  or  upon  any  other  legal 
question  that  arises  in  the  cause.  The  citizen  lives 
under  the  protection,  and  is  subject  to  the  require- 
ments, of  a written  fundamental  law.  No  depart- 
ment of  the  national,  or  of  any  State  government,  can 
lawfully  act  otherwise  than  according  to  the  powers 
conferred  or  the  restrictions  imposed  by  that  instru- 
ment. If  the  citizen  believe  himself  to  be  aggrieved 
by  some  action  of  either  government  which  he  sup- 
poses to  be  in  violation  of  the  Constitution,  and  his 
complaint  admit  of  judicial  investigation,  he  must 
be  heard  upon  that  question,  and  it  must  be  adjudi- 
cated, or  there  can  be  no  administration  of  the  laws 
worthy  of  the  name  of  justice. 

It  is  interesting,  therefore,  to  observe  how  this 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER. 


437  • 


function  of  the  judicial  power  gives  to  the  operation 
of  the  government  a comparatively  high  degree  of 
simplicity,  exactness,  and  directness,  notwithstanding 
the  refined  and  complex  character  of  the  system 
which  its  framers  were  obliged  to  establish.  To 
judge  of  the  merits  of  that  system,  in  this  particular, 
it  is  necessary  to  recur  again  to  those  alternative 
measures,  to  which  I have  frequently  referred,  and 
which  lay  directly  in  their  path.  One  of  these  meas- 
ures was  that  of  a council  of  revision,  to  be  charged 
with  the  duty  of  arresting  improper  laws.  Besides 
the  objection  which  has  been  already  alluded  to,  — 
that  the  question  of  the  conformity  of  a law  to  the 
Constitution  would  have  thus  been  finally  passed 
upon  in  the  abstract,  — such  an  institution,  although 
theoretically  confined  to  this  inquiry,  would  have 
become  practically  a third  legislative  chamber ; for 
it  would  inevitably  have  happened  that  considerations 
of  expediency  would  also  have  found  their  way  into 
the  deliberations  of  a numerous  body  appointed  to 
exercise  a revisory  power  over  all  acts  of  legislation. 
There  is  no  mode  in  which  the  question  of  constitu- 
tional power  to  enact  a law  can  be  determined,  with- 
out the  influence  of  considerations  of  policy  or  ex- 
pediency, so  effectually,  as  by  confining  the  final 
determination  to  the  special  operation  of  the  law 
upon  the  facts  of  an  individual  case.  When  the 
tribunal  that  is  to  decide  this  question  is,  by  the 
very  form  in  which  it  is  required  to  act,  limited  to 
the  bearing  of  the  law  upon  some  right  or  duty  of 
an  individual  placed  in  judgment  by  a record,  it  is 


438 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


at  once  relieved  of  the  responsibility,  and  in  a great 
degree  freed  from  the  temptation,  of  considering 
the  policy  of  the  legislation.  If,  therefore,  it  be 
conceded  — as  every  one  will  concede  — that,  what- 
ever public  body  is  specially  instituted  for  the  pur- 
pose of  submitting  the  acts  of  the  legislature  to  the 
test  of  the  Constitution,  it  should  neither  possess 
the  power,  nor  be  exposed  to  the  danger,  of  invad- 
ing the  legislative  province,  by  acting  upon  motives 
of  expediency,  it  must  be  allowed  that  the  framers 
of  the  Constitution  did  wisely  in  rejecting  the  arti- 
ficial, cumbrous,  and  hazardous  project  of  a council 
of  revision.  The  plan  of  such  a council  was,  it  is 
true,  much  favored,  and  indeed  insisted  upon,  by 
some  of  the  wisest  men  in  the  Convention.  But  it 
was  urged  at  a time  when  the  negative  that  was  to 
be  given  to  the  President  had  not  been  settled,  and 
when  he  had  not  been  made  sufficiently  independent 
of  the  legislature  to  insure  his  unfettered  employ- 
ment of  the  negative  that  might  be  given  to  him. 
The  purpose  of  the  proposed  council  of  revision  was 
to  strengthen  his  hands,  by  uniting  the  judges  with 
him  in  the  exercise  of  the  “ veto.”  This  would 
have  given,  to  the  judges  a control  both  over  the 
question  of  constitutional  power  and  the  question  of 
legislative  policy.  As  to  the  latter,  it  became  unne- 
cessary, as  well  as  inexpedient,  to  unite  the  judges 
with  the  President,  after  he  had  been  clothed  with  a 
suitable  negative,  and  after  his  election  had  been 
taken  from  the  legislature ; and  as  to  the  former 
question,  the  final  arrangement  of  the  judicial  power 


Ch.  xiv. j purposes  of  the  judicial  power.  439 


made  it  equally  unnecessary  to  form  the  judges  into 
a council  of  revision,  since,  if  the  President  should 
fail  to  arrest  an  unconstitutional  law,  when  pre- 
sented for  his  approval,  it  could  be  tested  in  the 
ordinary  course  of  judicial  proceedings  after  it  had 
gone  into  operation. 

But  the  conformity  of  laws  of  Congress  to  the 
Constitution  was  not  all  that  was  to  be  secured. 
Some  prudent  and  effectual  means  were  to  be  de- 
vised, by  which  the  acts  of  the  State  governments 
could  be  subjected  to  the  same  test.  The  project  of 
submitting  the  laws  of  the  States  to  some  depart- 
ment of  the  general  government,  while  they  were  in 
the  process  of  being  enacted,  or  before  they  could 
have  the  form  of  law,  was  full  of  inconvenience  and 
hazard.  It  could  not  have  been  attempted  without 
an  injury  to  State  pride,  that  would  have  aroused  an 
inextinguishable  opposition  to  the  national  authority, 
even  if  the  plan  could  once  have  been  assented  to. 
Yet  there  was  no  other  alternative,  unless  the  judi- 
cial power  of  the  general  government  should  be  so 
constructed  as  to  enable  it  to  take  the  same  cogni- 
zance of  a constitutional  question,  when  arising  upon 
the  law  of  a State,  that  it  was  to  take  of  such  a ques- 
tion when  arising  upon  an  act  of  Congress.  The  same 
necessity  would  exist  in  the  one  case,  as  in  the  other, 
for  a power  within  the  general  government  to  give 
practical  effect  to  that  supremacy  which  the  Consti- 
tution was  to  claim  for  itself,  for  treaties,  and  for  the 
laws  passed  in  pursuance  of  its  provisions.  All  the 
restrictions  which  the  Constitution  was  to  lay  upon 


440 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  powers  of  the  States  would  be  nugatory,  if  the 
States  themselves  were  to  be  the  final  judges  of  their 
meaning  and  operation.  This  transcendent  power 
of  interpretation  and  application,  so  logically  neces- 
sary, and  yet  so  certain  to  wound  and  irritate,  if  ex- 
ercised by  direct  interference,  could  be  wielded,  with- 
out injurious  results,  through  the  agency  of  judicial 
forms,  by  a judicial  investigation  into  personal  rights, 
when  affected  by  the  action  of  a State  government, 
just  as  it  could  be  in  reference  to  the  acts  of  any 
department  of  the  national  government  that  could 
be  made  the  subject  of  proceedings  in  a court  of 
justice. 

The  relation  of  the  judicial  power  to  the  execu- 
tion of  treaties  rests  upon  the  same  grounds  of  para- 
mount necessity.  It  is  not  merely  for  the  sake  of 
uniformity  of  interpretation,  that  the  national  judi- 
ciary is  authorized  to  decide  finally  all  cases  arising 
under  treaties,  although  uniformity  of  interpretation 
is  essential  to  the  preservation  of  the  public  faith ; 
but  it  is  in  order  that  the  treaty  shall  be  executed, 
by  being  placed  beyond  the  hazards  both  of  wrong 
construction  and  of  interested  opposition.  The 
memorable  instance  of  the  Treaty  of  Peace,  the  ab- 
solute failure  of  which  in  point  of  execution,  before 
the  adoption  of  the  Constitution,  has  been  described 
in  the  first  volume  of  this  work,  presents  the  great 
illustration,  in  our  constitutional  history,  of  the  only 
mode  in  which  the  supremacy  of  treaty  stipulations 
as  law  can  be  maintained  in  our  system  of  govern- 
ment. “ The  United  States  in  Congress  assembled,” 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER. 


441 


under  the  Confederation,  had  the  same  exclusive 
authority  to  make  treaties  that  is  now  possessed  by 
the  President  and  the  Senate  under  the  Constitution, 
and  a treaty  ivas  in  theory  as  obligatory  then,  upon 
the  separate  States  and  their  inhabitants,  as  it  is  now. 
But  it  has  been  found  to  be  an  axiom  of  universal 
application  in  the  art  of  government,  that  a suprem- 
acy which  is  merely  theoretical  is  no  real  supremacy. 
If  a stipulation  made  by  the  proper  authority  with  a 
foreign  government  is  to  have  the  force  of  law,  re- 
quiring the  obedience  of  individuals  and  of  all  public 
authorities,  its  execution  must  be  committed  to  a 
judiciary  acting  upon  private  rights  without  the  hin- 
derance  or  influence  of  adverse  legislation. 

There  is  another  branch  of  the  judicial  power 
which  illustrates  in  a striking  manner  the  object 
embraced  in  the  preamble  of  the  Constitution,  where 
the  people  of  the  United  States  declare  it  to  be  their 
purpose  “to  establish  justice.”  This  is  found  in  the 
provision  for  a special  jurisdiction  over  the  rights  of 
persons  bearing  a certain  character.  Like  almost 
everything  else  in  the  Constitution,  this  feature  of 
the  judicial  power  sprang  from  a necessity  taught 
by  previous  and  severe  experience.  Seasoning  from 
the  mere  nature  of  such  a government  as  that  of  the 
United  States,  it  might  seem  that  the  judicatures  of 
the  separate  States  would  be  sufficient  for  the  admin- 
istration of  justice  in  all  cases  in  which  private  rights 
alone  are  concerned,  and  by  which  no  power  or  in- 
terest of  the  general  government,  and  no  provision 
of  the  general  Constitution,  is  likely  to  be  affected. 

VOL.  II.  56 


442 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


But  we  find  in  the  judicial  power  of  the  United 
States  a particular  jurisdiction  given  on  account  of 
the  mere  civil  characters  of  the  parties  to  a contro- 
versy ; and  its  existence  there  is  to  be  accounted 
for  upon  other  than  speculative  reasons.  From  the 
Declaration  of  Independence  to  the  day  of  the  rati- 
fication of  the  Constitution,  the  judicial  tribunals  of 
the  States  had  been  unable  to  administer  justice  to 
foreigners,  to  citizens  of  other  States,  to  foreign 
governments  and  their  representatives,  and  to  the 
governments  of  their  sister  States,  so  as  to  command 
the  confidence  and  satisfy  the  reasonable  expecta- 
tions of  an  enlightened  judgment.  Hence  the  ne- 
cessity for  opening  the  national  courts  to  these 
various  classes  of  parties,  whose  different  positions 
may  now  be  briefly  considered. 

In  a country  of  confederated  States,  each  possess- 
ing a full  power  of  legislation,  it  could  not  but  hap- 
pen— as  it  did  constantly  happen  in  this  Union 
before  the  adoption  of  the  Constitution  — that  the 
determination  of  controversies  between  citizens  of 
the  State  where  the  adjudication  ivas  to  be  had, 
and  citizens  of  another  State,  would  be  exposed  to 
influences  unfavorable  to  the  ends  of  justice.  In 
truth,  one  of  the  parties  in  such  a controversy  was 
virtually  an  alien,  in  the  tribunal  which  he  was 
obliged  to  enter ; for  although  the  Articles  of  Con- 
federation undertook  to  secure  to  the  free  inhabitants 
of  each  State  all  the  privileges  and  immunities  of 
free  citizens  in  the  several  States,  yet  it  is  obvious 
that  the  efficacy  of  such  a provision  must  depend 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER. 


443 


almost  wholly  upon  the  spirit  of  the  tribunals,  and 
upon  their  capacity  to  give  effect  to  such  a declara- 
tion of  rights,  against  a course  of  State  policy  or  the 
positive  enactments  of  a State  code.  The  chief  dif- 
ficulty of  the  condition  of  affairs  existing  before  the 
Constitution  lay  not  so  much  in  the  hazards  of  a 
violation  of  principle  through  local  prejudice,  or 
the  superior  force  of  local  policy  or  legislation, — 
although  these  influences  were  always  powerful,  — 
as  in  the  fact  that,  when  these  influences  were  likely 
to  be  most  active,  or  were  most  feared,  there  was  no 
tribunal  to  which  resort  could  be  had,  and  which 
was  known  to  be  beyond  their  operation  and  their 
reach.  The  articles  of  compact  between  the  States 
had  intended  to  remove  from  the  citizens  of  the 
different  States  the  disabilities  of  practical  alienage 
under  which  they  would  have  stood  in  the  tribunals 
of  each  other.  But  with  that  mere  declaration  those 
articles  stopped.  If  the  litigant  saw  that  the  local 
law  was  likely  to  be  administered  to  him  as  if  he 
were  a foreigner,  or  feared  that  the  scales  of  justice 
would  not  be  held  with  an  impartial  hand,  he  could 
go  nowhere  else  for  a decision.  This  was  a great 
evil ; for  much  of  the  value  of  every  judicature  de- 
pends upon  the  confidence  it  inspires. 

There  were  still  other  and  perhaps  stronger  rea- 
sons for  creating  an  independent  jurisdiction,  to  be 
resorted  to  by  foreigners,  in  controversies  with  citi- 
zens of  the  States.  No  clause  in  the  Constitution 
was  to  make  them  equal  in  rights  with  citizens,  and 
for  the  very  reason  of  their  alienage,  therefore,  it  was 


444 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


necessary  to  give  them  access  to  tribunals  organized 
under  the  authority  of  the  general  government,  which 
would  be  responsible  to  foreign  powers  for  the  treat- 
ment that  their  subjects  might  receive  in  the  United 
States.  Ambassadors,  too,  and  other  foreign  min- 
isters, would  not  only  be  aliens,  but  would  possess 
the  character  of  representatives  of  their  sovereigns ; 
and  consuls  would  be  the  public  agents  of  their  gov- 
ernments, although  not  bearing  the  diplomatic  char- 
acter. These  functionaries  were  therefore  permitted 
to  resort  to  the  judicial  power  of  the  United  States ; 
and  for  the  purpose  of  more  effectually  protecting  the 
national  interests  that  might  be  involved  in  their  per- 
sonal or  official  relations,  original  jurisdiction  was 
given  to  the  Supreme  Court  in  all  cases  affecting 
them. 

In  addition  to  these,  there  were  other  controversies, 
which,  as  we  have  seen,  were  included  within  the 
judicial  power  of  the  United  States,  on  account  of 
the  character  of  the  parties;  namely, -those  to  which 
the  United  States  might  be  a party ; those  to  which 
a State  of  the  Union  might  be  a party,  where  the 
opposite  party  was  another  State  of  the  Union,  or  a 
citizen  of  another  State  of  the  Union,  or  a foreign 
state  or  its  citizens  or  subjects ; and  those  between 
citizens  of  a State  of  the  Union,  and  foreign  states, 
citizens,  or  subjects.  Finally,  controversies  between 
citizens  of  the  same  State  claiming  lands  under  grants 
of  different  States  were  placed  under  the  same  juris- 
diction for  similar  reasons ; — because  the  State  tri- 
bunals could  not  be  expected  to  afford  that  degree  of 


) 


Ch.  XIV.]  PURPOSES  OF  THE  JUDICIAL  POWER.  445 

impartiality  which  the  circumstances  of  these  several 
cases  required. 

There  remains  only  one  other  branch  of  the  juris- 
diction conferred  by  the  Constitution  on  the  tribunals 
of  the  United  States  which  it  is  necessary  to  notice ; 
namely,  the  admiralty  and  maritime  jurisdiction. 
With  respect  to  the  criminal  jurisdiction  in  admiral- 
ty, in  cases  of  piracies  and  felonies  committed  on  the 
high  seas,  and  the  prize  jurisdiction,  the  Articles  of 
Confederation  had  given  to  the  Congress  the  exclu- 
sive power  of  appointing  courts  for  the  trial  of  the 
former,  and  for  hearing  and  finally  determining  ap- 
peals in  all  cases  of  capture.  Such  appeals  were 
taken  from  the  State  courts  of  admiralty,  — tribunals 
which  also  possessed  and  exercised  a civil  jurisdiction 
corresponding  to  that  of  the  admiralty  in  England, 
but  in  practice  somewhat  more  extensive.  When 
the  Constitution  was  framed,  it  was  perceived  to  be 
expedient,  on  account  of  the  relation  of  maritime 
commerce  to  the  intercourse  of  the  people  of  the 
United  States  with  foreign  nations,  or  to  the  inter- 
course of  the  people  of  different  States  with  each 
other,  to  give  the  whole  civil  as  well  as  criminal 
jurisdiction  in  admiralty,  and  the  entire  prize  juris- 
diction, original  as  well  as  appellate,  to  the  govern- 
ment of  the  Union.  This  was  effected  by  the  com- 
prehensive provision,  which  gives  the  judicial  power 
cognizance  of  “ all  cases  of  admiralty  and  maritime 
jurisdiction”;  expressions  which  have  often  been, 
and  are  still  likely  to  be,  the  subject  of  much  foren- 
sic controversy  with  respect  to  the  particular  trans- 


446 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


actions,  of  a civil  nature,  intended  to  be  embraced  in 
the  jurisdiction,  but  in  reference  to  which  there  is 
nothing  in  the  known  proceedings  of  the  Convention, 
other  than  what  is  to  be  inferred  from  the  language 
selected,  that  affords  any  special  evidence  of  the  in- 
tention of  the  framers  of  the  Constitution. 


CHAPTER  XY. 


Report  of  the  Committee  of  Detail,  continued.  — Effect 
of  Records.  — Inter-State  Privileges.  — Fugitives  from 
Justice  and  from  Service. 

We  now  come  to  a class  of  provisions  designed  to 
place  the  people  of  the  separate  States  in  more  inti- 
mate relations  with  each  other,  by  removing,  in  some 
degree,  the  consequences  that  •would  otherwise  flow 
from  their  distinct  and  independent  jurisdictions. 
This  was  to  be  done  by  causing  the  rights  and  bene- 
fits resulting  from  the  laws  of  each  State  to  be,  for 
some  purposes,  respected  in  every  other  State.  In 
other  words,  by  the  establishment  and  effect  of  cer- 
tain exceptions,  the  general  rule  which  absolves  an 
independent  government  from  any  obligation  to  re- 
gard the  law,  the  authority,  or  the  policy  of  another 
government  was,  for  some  purposes,  to  be  obviated 
between  the  States  of  the  American  Union. 

To  some  extent,  this  had  been  attempted  by  the 
Articles  of  Confederation,  by  providing,  — first,  that 
the  free  inhabitants  of  each  of  the  States  (paupers, 
vagabonds,  and  fugitives  from  justice  excepted) 
should  be  entitled  to  all  privileges  and  immunities 
of  free  citizens  in  the  several  States ; and  that  the 
people  of  each  State  should  have  free  ingress  and 


448 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


regress  to  and  from  any  other  State,  and  the  same 
privileges  of  trade  and  commerce  as  its  inhabitants ; 
— secondly,  that  fugitives  from  justice  charged  with 
certain  enumerated  crimes,  and  escaping  from  one 
State  into  another,  should  be  given  up,  on  demand 
of  the  executive  of  the  State  from  Avhich  they  had 
escaped ; — and  thirdly,  that  full  faith  and  credit 
should  be  given  in  each  State  to  the  records,  acts,  and 
judicial  proceedings  of  the  courts  and  magistrates  of 
every  other  State. 

The  Confederation,  however,  was  a “ firm  league 
of  friendship  with  each  other,”  entered  into  by  sep- 
arate States,  and  the  object  of  the  provisions  above 
cited  was  “ the  better  to  secure  and  perpetuate  mu- 
tual friendship  and  intercourse  among  the  people  ” 
of  those  States.  One  of  the  purposes  of  the  Consti- 
tution, on  the  other  hand,  was  “ to  form  a more  per- 
fect Union  ” ; and  we  are  therefore  to  expect  to  find 
its  framers  enlarging  and  increasing  the  scope  of 
these  provisions,  and  giving  to  them  greater  precis- 
ion and  vigor.  We  shall  see,  also,  that  they  made 
a very  important  addition  to  their  number. 

The  first  thing  that  was  done  was  to  make  the 
language  of  the  Confederation  respecting  the  privi- 
leges of  general  citizenship  somewhat  more  precise. 
The  Articles  of  Confederation  had  made  “ the  free 
inhabitants  of  each  State,”  with  certain  exceptions, 
entitled  to  the  privileges  and  immunities  of  “free 
citizens  in  the  several  States.” 1 It  is  probable  that 

i See  and  compare  Art.  IV.  of  the  Confederation  and  Art.  IV.  § 2 of 
the  Constitution. 


Ch.  XV.] 


FUGITIVES  FROM  JUSTICE. 


449 


these  two  expressions  "were  intended  to  be  used  in 
the  same  sense,  and  that  by  “ free  inhabitants  ” of  a 
State  was  meant  its  “ free  citizens.”  The  framers  of 
the  Constitution  substituted  the  latter  expression  for 
the  former,  and  thus  designated  more  accurately  the 
persons  who  are  to  enjoy  the  privileges  and  immu- 
nities of  free  citizens  in  other  States  besides  their 
own. 

In  the  next  place,  while  the  Articles  of  Confedera- 
tion declared  that  full  faith  should  be  given  in  each 
State  to  the  acts,  records,  and  judicial  proceedings 
of  every  other  State,  they  neither  prescribed  the 
mode  in  which  the  proof  was  to  be  made,  nor  the 
effect  when  it  had  been  made.  The  committee  of 
detail,  in  preparing  the  first  draft  of  the  Constitution, 
merely  adopted  the  naked  declaration  of  the  articles. 
The  Convention  added  to  it  the  further  provision, 
Avhich  enabled  Congress  to  prescribe  by  general  laws 
the  manner  in  which  such  acts,  records,  and  proceed- 
ings shall  be  proved,  and  the  effect  to  be  given  to 
them  when  proved.1 

With  respect  to  fugitives  from  justice,  the  Arti- 
cles of  Confederation  had  specified  persons  “ charged 
with  treason,  felony,  or  other  high  misdemeanor  in 


1 So  far  as  the  proceedings  in 
the  Convention  are  to  be  regarded 
as  a guide  to  construction,  it  ap- 
pears clearly  that  the  clause  which 
empowers  Congress  to  “ prescribe 
the  manner  in  which  such  acts, 
records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof"  was 
intended  to  give  a power  to  declare 
vol.  it.  57 


the  effect  of  the  acts,  records,  and 
judicial  proceedings  of  any  State, 
when  offered  in  evidence  in  anoth- 
er State,  as  well  as  to  prescribe 
the  mode  of  proving  them.  See 
Elliot,  V.  487,  488,  503,  504.  See 
also  a learned  discussion  on  this 
clause  in  Story’s  Commentaries, 
§§  1302-  1313. 


450 


FOEMATION  OF  THE  CONSTITUTION.  [Book  IV. 


any  State,”  as  those  who  were  to  be  given  up  by  the 
States  to  each  other.  For  the  purpose  of  avoiding 
the  ambiguity  of  this  language,  the  provision  was 
made  to  embrace  all  other  crimes,  as  well  as  treason 
and  felony.1 

Besides  correcting  and  enlarging  these  provisions, 
the  framers  of  the  Constitution  introduced  into  the 
system  of  the  Union  a special  feature,  which,  in  the 
relations  of  the  States  to  each  other , was  then  entirely 
novel,  although  not  without  precedent.  I refer,  of 
course,  to  the  clause  requiring  the  extradition  of 
tc  fugitives  from  service,”  who  have  escaped  from  one 
State  into  another. 

In  describing  the  compromises  of  the  Constitution 
relating  to  slavery,  I have  not  placed  this  provision 
among  them,  because  it  was  not  a part  of  the  ar- 
rangement by  which  certain  powers  were  conceded 
to  the  Union  by  one  class  of  States,  in  consideration 
of  certain  concessions  made  by  another  class.  It  is 
a provision  standing  by  itself,  in  respect  to  its  origin, 
about  which  there  is  some  popular  misapprehension. 
Its  history  is  as  follows. 

In  many  of  the  discussions  that  had  taken  place, 
in  preparing  the  outline  of  the  government  that  was 
sent  to  the  committee  of  detail,  a good  deal  of  jeal- 
ousy had  been  felt  and  expressed  by  some  of  the 
Southern  members,  not  only  with  regard  to  the  rel- 
ative weight  of  their  States  in  the  representative 
system,  but  also  with  respect  to  the  security  of  their 
slave  property.  Slavery,  although  it  had  existed  in 

1 Elliot,  V.  487. 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


451 


all  of  the  States,  and  although  there  still  remained 
in  all  of  them  excepting  Massachusetts  some  persons 
of  the  African  race  still  held  in  that  condition,  was 
likely  soon  to  disappear  from  the  States  of  New 
Hampshire,  Khode  Island,  Connecticut,  New  York, 
and  Pennsylvania,  under  changes  that  would  be  in- 
troduced by  their  constitutions  or  by  statutory  pro- 
vision. In  the  whole  of  New  England,  therefore, 
and  in  nearly  all  of  the  Middle  States  excepting 
Maryland,  if  the  principles  of  the  common  law  and 
of  the  law  of  nations  were  to  be  applied  to  such 
cases,  the  relation  of  master  and  slave,  existing 
under  the  law  of  another  State,  could  not  be  recog- 
nized, and  there  could  be  no  means  of  enforcing  a 
return  to  the'  jurisdiction  which  gave  to  the  master 
a right  to  the  custody  and  services  of  the  slave.  At 
the  same  time,  it  was  apparent  that,  in  the  five  States 
of  Maryland,  Virginia,  North  Carolina,  South  Caro- 
lina, and  Georgia,  slavery  would  not  only  be  likely 
to  continue  for  a very  long  period  of  time,  but  that 
this  form  of  labor  constituted,  and  would  be  likely 
long  to  constitute,  a necessary  part  of  their  social 
system.  The  theory  on  which  the  previous  Union 
had  been  framed,  and  on  which  the  new  Union  now 
intended  to  be  consummated  was  expressly  to  be 
founded,  was,  that  the  domestic  institutions  of  the 
States  were  exclusively  matters  of  State  jurisdiction. 
But  if  a relation  between  persons,  existing  by  the 
law  of  a particular  State,  was  to  be  broken  up  by  an 
escape  into  another  State,  by  reason  of  the  fact  that 
such  a relation  was  unknown  to  or  prohibited  by  the 


452 


FORMATION  OF  THE  CONSTITUTION.  [Book  IY. 


law  of  the  place  to  which  the  party  had  fled,  it  was 
obvious  that  this  theory  of  the  Union  would  be  of 
very  little  practical  value  to  the  States  in  which  such 
a relation  was  to  exist,  and  to  be  one  of  great  im- 
portance. If  the  territory  of  every  State  in  which 
this  relation  was  not  to  he  recognized,  were  to  be 
made  an  asylum  for  fugitives,  the  right  of  the  mas- 
ter to  the  services  of  the  slave  would  be  wholly 
insecure. 

It  was  in  reference  to  this  anticipated  condition  of 
things,  that  General  Pinckney  of  South  Carolina,  at 
the  time  when  the  principles  that  were  to  be  the 
basis  of  the  Constitution  were  sent  to  the  committee 
of  detail,1  gave  notice,  that,  unless  some  provision 
should  be  inserted  in  their  report  to  prevent  this 
consequential  emancipation,  he  should  vote  against 
the  Constitution.  Considering  the  position  and  in- 
fluence of  this  gentleman,  his  declaration  was  equiv- 
alent to  a notice  that,  without  such  a provision,'  the 
Constitution  would  not  be  accepted  by  the  State 
which  he  represented.  Still,  the  committee  of  de- 
tail omitted  to  make  any  such  special  provision  in 
their  report  of  a Constitution,  and  inserted  only  a 
general  article  that  the  citizens  of  each  State  should 
be  entitled  to  all  the  privileges  and  immunities  of 
citizens  in  the  several  States.2  General  Pinckney 
was  not  satisfied  with  this,  and  renewed  his  demand 
for  a provision  “ in  favor  of  property  in  slaves.” 3 

1 July  23d.  Elliot,  Y.  357.  3 These  are  the  words  of  Mr. 

9 Art.  XIV.  of  the  report  of  the  Madison’s  Minutes.  Elliot,  V.  487. 

committee  of  detail.  This  was  on  the  26th  of  August. 


' J ' ■ • 

Ch.  XV.]  FUGITIVES  FEOM  SERVICE.  453 

But  the  article  was  adopted,  South  Carolina  voting 
against  it,  and  the  vote  of  Georgia  being  divided. 

As  soon,  however,  as  the  next  article  was  taken 
up,  which  required  the  surrender  of  fugitives  from 
justice  escaping  from  one  State  into  another,  the 
South  Carolina  members  moved  to  require  “ fugitive 
slaves  and  servants  to  be  delivered  up,  like  crimi- 
nals.”1 Objection  was  made,  that  this  would  re- 
quire the  executive  of  the  State  to  do  it  at  the 
public  expense,2  and  that  there  was  no  more  pro- 
priety in  the  public  seizing  and  surrendering  a 
slave  or  a servant,  than  a horse.3  The  proposition 
was  then  withdrawn,  in  order  that  a particular 
provision  might  be  framed,  apart  from  the  article 
requiring  the  surrender  of  fugitives  from  justice. 
That  article  was  then  adopted  without  opposition.4 

For  a provision  respecting  fugitives  from  service, 
the  movers  had  two  remarkable  precedents  to  which 
they  could  resort,  and  which  had  settled  the  correct- 
ness of  the  principle  involved.  Negro  slavery,  as 
well  as  other  forms  of  service,  had  existed  in  the 
New  England  Colonies  at  a very  early  period.  In 
1643,  the  four  Colonies  of  Massachusetts  Bay,  Plym- 
outh, Connecticut,  and  New  Haven  had  formed  a 
confederation,  in  which,  among  other  things,  they 
had  mutually  stipulated  with  each  other  for  the  res- 
toration of  runaway  “ servants  ” ; and  there  is  indu- 

1 Madison,  ut  supra.  The  mo-  2 By  Wilson, 

tion  was  made  by  Butler  and  3 By  Sherman. 

Pinckney,  according  to  Mr.  Mad-  4 Madison,  ut  supra.  August  28. 


ison. 


454 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


bitable  evidence,  that  African  slaves,  as  Avell  as  other 
persons  in  servitude,  were  included  in  this  provision.1 

The  other  precedent  was  found  in  the  Ordinance 
which  had  just  been  adopted  by  Congress  for  the 
settlement  and  government  of  the  Territory  north- 


1 The  reader  who  will  consult  a 
paper  in  the  fourth  volume  of  the 
Collections  of  the  Massachusetts 
Historical  Society  (p.  194),  writ- 
ten by  Dr.  Belknap,  in  1795,  will 
find  that  slavery,  in  the  sense  in 
which  the  term  is  now  commonly 
understood,  existed  in  Massachu- 
setts Bay  as  early  as  1G30.  The 
proof  of  it  consists,  — 1.  In  the 
provisions  of  the  colonial  laws  and 
ordinances,  which  recognize  and 
regulate  a relation  very  different 
from  that  of  service  for  hire.  On 
this  subject,  the  early  colonists  of 
Massachusetts  held  and  practised 
the  law  of  Moses.  They  regarded 
it  as  lawful  to  buy  and  sell  “ slaves 
taken  in  lawful  war,”  or  reduced 
to  servitude  by  judicial  sentence, 
and  placed  them  under  the  same 
privileges  as  those  given  by  the 
Mosaic  law.  But  they  punished 
man-stealing  capitally,  re-enacting 
expressly  the  16th  verse  of  the  21st 
chapter  of  Exodus ; and  when  there 
were  any  negroes  in  their  juris- 
diction who  had  been  stolen,  or 
“ fraudulently  ” acquired  in  Africa, 
they  endeavored  to  send  them  back 
again.  2.  In  the  actual  presence 
of  negro  slaves,  brought  from  Af- 
rica, who  had  been  “ lawfully  ” ac- 
quired, that  is,  by  fair  purchase 
from  those  who  held  them  as  pris- 


oners of  war.  These  existed  to 
some  extent  in  the  Colony  in  1638, 
and  were  numerous  in  1673  ; and 
of  course  were  included  in  all  the 
legislation  of  that  period  respect- 
ing service,  being  sometimes  de- 
scribed as  “ slaves,”  and  sometimes 
by  the  more  general  and  compre- 
hensive term  of  “ servants.” — Slav- 
ery by  judicial  sentence  was  in- 
flicted for  no  higher  crimes  than 
theft  and  burglary.  Thus  at  a 
Quarter  Court  holden  at  Boston 
the  4th  day  of  the  10th  month, 
1638,  “John  Hazlewood  being 
found  guilty  of  severall  thefts  and 
breaking  into  severall  houses,  was 
censured  to  be  severely  whipped 
and  delivered  up  a slave  to  whom 
the  Court  shall  appoint.”  (Shurt- 
leff’s  Edition  of  Records  of  Mas- 
sachusetts, I.  246.)  Many  of  the 
Indians  taken  prisoners  in  King 
Philip’s  war,  who  had  formerly 
submitted  to  the  Colonial  govern- 
ment and  had  been  called  “ Pray- 
ing Indians  ” from  their  supposed 
conversion  to  Christianity,  were 
adjudged  guilty  of  “ rebellion,”  and 
were  sold  into  slavery  in  fpreign 
countries.  Dr.  Belknap  says  that 
some  of  them  found  their  way  back 
again,  and  took  a severe  revenge 
on  the  English  in  a subsequent 
war.  (Hist.  Soc.  Coll,  ul  supra.) 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


455 


west  of  the  river  Ohio ; in  which,  when  legislating 
for  the  perpetual  exclusion  of  “ slavery  or  involun- 
tary servitude,”  a similar  provision  was  made  for  the 
surrender  of  persons  escaping  into  the  Territory, 
“ from  whom  labor  or  service  is  lawfully  claimed  in 
any  one  of  the  original  States.” 

In  making  this  provision,  the  early  colonists  of 
New  England,  and  the  Congress  of  the  Confedera- 
tion, had  acted  upon  a principle  directly  opposite  to 
the  objection  that  was  raised  in  the  formation  of  the 
Constitution  of  the  United  States.  When  it  was 
said  in  the  Convention,  that  the  public  authority 
ought  no  more  to  interfere  and  surrender  a fugitive 
slave  or  servant  than  a horse,  it  was  forgotten  that, 
by  the  principles  of  the  common  law  and  the  comity 
of  nations,  not  only  is  property  in  movable  things 
recognized  by  civilized  states,  but  a remedy  is  af- 
forded for  restitution.  But  in  the  case  of  a fugitive 
person,  from  whom,  by  the  law  of  the  community 
from  which  he  escapes,  service  is  due  to  another, 
the  right  to  the  service  is  not  recognized  by  the 
common  law  or  the  law  of  nations,  and  no  means 
exist  of  enforcing  the  duties  of  the  relation.  If  the 
case  is  to  be  met  at  all,  therefore,  it  can  only  be  by 
a special  provision,  in  the  nature  of  a treaty,  which 
will  so  far  admit  the  relation  and  the  claim  of  ser- 
vice, as  to  make  them  the  foundation  of  a right  to 
restore  the  individual  to  the  jurisdiction  of  that  law 
which  recognizes  and  enforces  its  duties. 

This  was  precisely  what  was  done  by  the  New 
England  Confederation  of  1643,  and  the  Ordinance 


456 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


of  1787 ; and  it  was  what  was  now  proposed  to  be 
done  by  the  Constitution  of  the  United  States.  It 
was  regarded  at  the  time  by  the  Southern  States  as 
absolutely  necessary  to  secure  to  them  their  right  of 
exclusive  control  over  the  question  of  emancipation,1 
and  it  was  adopted  in  the  Convention  by  unanimous 
consent,2  for  the  express  purpose  of  protecting  a 
right  that  would  otherwise  have  been  without  a sat- 
isfactory security.  A proper  understanding  of  the 
grounds  of  this  somewhat  peculiar  provision  is  quite 
important. 

The  publicists  of  Christendom  are  universally 
agreed,  that  independent  nations  are  under  no  posi- 
tive obligation  to  support  the  institutions,  or  to  en- 
force the  municipal  laws,  of  each  other.  So  far  does 
this  negative  principle  extend,  that  the  general  law 
of  nations  does  not  even  require  the  extradition  of 
fugitive  criminals,  who  have  escaped  from  one  coun- 
try into  another.  If  compacts  are  made  for  this 
purpose,  they  rest  entirely  upon  comity,  and  upon 
those  considerations  of  public  policy  which  make  it 
expedient  to  expel  from  our  own  borders  those  who 
have  violated  the  great  laws  on  which  the  welfare 
of  society  depends ; and  such  compacts  are  usually 
limited  to  those  offences  which  imply  great  moral  as 
well  as  civil  guilt.  The  general  rule  is,  that  a na- 
tion is  not  obliged  to  surrender  those  who  have  taken 

1 Mr.  Madison  stated  in  the  Con-  enable  owners  of  slaves  to  reclaim 
vention  of  Virginia  in  which  the  them.”  (Elliot’s  Debates,  III. 
Constitution  was  ratified,  that  “ this  453.) 

clause  was  expressly  inserted,  to  2 August  29.  Elliot,  V.  492. 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


457 


sanctuary  in.  its  dominions.  At  the  same  time,  every 
political  state  has  an  undoubted  right  to  forbid  the 
entry  into  its  territories  of  any  person  whose  presence 
may  injure  its  welfare  or  thwart  its  policy.  No  for- 
eigner, whether  he  comes  as  a fugitive  escaping  from 
the  violated  laws  of  another  country,  or  comes  for  the 
innocent  purposes  of  travel  or  residence,  can  demand 
a sanctuary  as  a matter  of  right.  Whether  he  is  to 
remain,  or  not  to  remain,  depends  entirely  upon  the 
discretion  of  the  state  to  which  he  has  resorted ; — 
a discretion  that  is  regulated  by  a general  principle, 
among  Christian  nations,  while  at  the  same  time  the 
general  principle  is  subject  to  such  exceptions  as  the 
national  interest  may  require  to  be  established. 

Slavery,  or  involuntary  servitude,  being  considered 
by  public  law  as  contrary  to  natural  right,  and  being 
a relation  that  depends  wholly  on  municipal  law, 
falls  entirely  within  the  principle  which  relieves  in- 
dependent nations  of  the  obligation  to  support  or  to 
enforce  each  other’s  laws.  It  has  not,  therefore,  been 
customary  for  states  which  have  no  peculiar  connec- 
tion, to  surrender  fugitives  from  that  relation,  or  to 
do  anything  to  enforce  its  duties.  But  such  fugi- 
tives stand  upon  a precise  equality  with  all  other 
strangers  who  seek  to  enter  a society  of  which  they 
are  not  members.  If  the  welfare  of  the  society  de- 
mands their  exclusion,  or  if  it  may  be  promoted  by  a 
stipulation  that  they  shall  be  taken  back  to  the  place 
where  their  sendee  is  lawfully  due,  the  right  to  ex- 
clude or  to  surrender  them  is  perfect ; for  every  po- 
litical society  has  the  moral  power,  and  is  under  a 

58 


VOL.  II. 


458 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


moral  obligation,  to  provide  for  its  own  welfare.  If 
such  stipulations  have  not  usually  been  made  among 
independent  nations,  their  absence  may  prove  that 
the  public  interest  has  not  required  them,  but  it  does 
not  prove  the  want  of  a right  to  make  them. 

Each  of  the  American  States,  when  its  people 
adopted  the  national  Constitution,  possessed  the 
right  that  belongs  to  every  political  society,  of  deter- 
mining what  persons  should  be  permitted  to  enter 
its  territories.  Each  of  them  had  a complete  right 
to  judge  for  itself  how  far  it  would  go,  in  recogniz- 
ing or  aiding  the  laws  or  institutions  of  the  other 
States.  It  is  obvious,  moreover,  that  States  which 
are  in  general  independent  of  each  other,  but  which 
propose  to  enter  into  national  relations  with  each 
other  under  a common  government,  for  certain  great 
political  and  social  ends,  may  have  reasons  for  giv- 
ing a particular  effect  to  each  other’s  laws,  or  for  sus- 
taining each  other’s  institutions,  which  do  not  oper- 
ate with  societies  not  standing  in  such  a relation ; 
and  that  these  reasons  may  be  of  a character  so 
grave  and  important,  as  to  amount  to  a moral  obli- 
gation. Thus  independent  and  disconnected  nations 
are  ordinarily  under  no  obligation  to  support  or 
guarantee  each  other’s  forms  of  government.  But 
the  American  States,  in  entering  into  the  new  Union 
under  their  national  Constitution,  found  that  a repub- 
lican form  of  government  in  every  State  was  a thing 
so  essential  to  the  welfare  and  safety  of  all  of  them, 
as  to  make  it  both  a necessity  and  a duty  for  all  to 
guarantee  that  form  of  government  to  each  other. 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


459 


In  the  same  way,  although  nations  in  general  do  not 
recognize  the  relation  of  master  and  servant  prevail- 
ing by  the  law  of  another  country,  so  far  as  to  stip- 
ulate for  the  surrender  of  persons  escaping  from  that 
relation,  the  American  States  found  themselves  sur- 
rounded by  circumstances  so  imperative,  as  to  make 
it  both  a necessity  and  a duty  to  make  with  each 
other  that  stipulation.  These  circumstances  I shall 
now  briefly  state. 

I have  already  referred  to  all  the  known  proceed- 
ings in  the  Convention  on  this  subject,  and  have 
stated  to  what  extent  those  proceedings  justify  the 
opinion  that  the  Constitution  could  not  -have  been 
formed  without  this  provision.1  But  there  is  higher 
evidence  both  of  its  necessity  and  its  propriety  than 
anything  that  may  have  been  said  by  individuals  or 
delegations.  The  States  were  about  to  establish  a 
more  perfect  Union,  under  a peculiar  form  of  nation- 
al government,  the  effect  of  which  would  necessarily 
bring  them  into  closer  relations  with  each  other, 
multiplying  greatly  the  means  and  opportunities  of 
intercourse,  and  enabling  them  to  act  on  each  other’s 
internal  condition  with  an  influence  that  would 
be  nearly  irresistible,  unless  it  should  be  arrested 
by  constitutional  barriers.  Among  the  features  of 
their  internal  condition,  the  relation  of  master  and 
servant,  or  the  local  institution  of  servitude,  was  one 
that  must  either  be  placed  under  national  cognizance. 

1 I am  not  aware  of  any  more  of  the  Constitution  was  expressly 
positive  evidence  than  that  above  made  in  the  Convention  a condition 
given  in  the  text,  that  this  clause  of  assent  by  any  of  the  States. 


460 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


or  be  left  exclusively  to  the  local  authority  of  each 
State.  There  was  no  middle  or  debatable  ground, 
which  it  could  with  safety  be  suffered  to  occupy. 
The  African  race,  although  scattered  throughout  all 
of  the  States,  was  placed  in  very  different  circum- 
stances in  different  parts  of  the  country.  There 
could  have  been  no  national  legislation  with  respect 
to  that  race,  concerning  the  time  or  mode  of  emanci- 
pation, the  tenure  of  the  master’s  right,  or  the  treat- 
ment of  the  slave,  that  would  not  have  been  forced 
to  adapt  itself  to  an  almost  endless  variety  of  circum- 
stances in  different  localities.  At  the  same  time,  it 
was  one  of  the  fundamental  principles  on  which  the 
whole  Constitution  was  proposed  to  be  founded,  that, 
where  the  national  authority  could  not  furnish  a 
uniform  rule,  its  legislative  power  was  not  to  extend. 
Whatever  required  one  rule  in  Massachusetts  and 
another  rule  in  Virginia,  for  the  exigencies  of  soci- 
ety, was  necessarily  left  to  the  separate  authority  of 
the  respective  States.  It  was  upon  matters  on  which 
the  States  could  not  legislate  alike,  but  on  which  the 
national  power  could  furnish  a safe  and  advantageous 
uniform  rule,  that  the  want  of  a national  Constitu- 
tion was  felt,  and  for  these  alone  was  its  legislative 
power  to  be  created. 

We  may  suppose,  then,  that  the  framers  of  the 
Constitution  had  sought  to  bring  the  relation  of 
master  and  servant,  or  the  condition  of  the  African 
race,  within  the  States,  under  the  cognizance  of  na- 
tional legislation ; and  we  may  imagine,  for  the  pur- 
poses of  the  argument,  that  consent  had  been  given 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


461 


by  every  one  of  the  States.  The  power  must  have 
remained  dormant,  or  its  exercise  would  have  been 
positively  mischievous.  It  never  could  have  been 
exercised  beneficially  for  either  of  the  two  races ; not 
only  because  it  could  not  have  followed  any  uniform 
system,  but  because  the  confusions  and  jealousies 
which  must  have  attended  any  attempt  to  legislate 
specially,  must  either  have  totally  obstructed  the 
power,  or  must  have  made  its  exercise  absolutely 
pernicious.  These  consequences,  w7hich  the  least 
reflection  will  reveal,  may  serve  to  show  us,  far  bet- 
ter than  any  declarations  or  debates,  why  the  framers 
of  the  Constitution  studiously  avoided  acquiring  any 
power  over  the  institution  of  slavery  in  the  States ; 
— why  the  representatives  of  one  class  of  States 
could  not  have  consented  to  give,  and  the  represen- 
tatives of  another  class  could  never  have  desired  to 
obtain,  such  a power  for  the  national  Constitution. 

But  it  may  be  asked,  — and  the  question  is  often 
prompted  by  a feeling  of  pity  towards  individual 
cases  of  hardship,  — Why  did  not  the  framers  of  the 
Constitution  content  themselves  with  the  negative 
position,  wThich  leaves  the  institution  of  slavery  to 
the  uncontrolled  direction  of  every  State  in  which 
it  is  found  ? Why  did  they  establish  a rule  that  ob- 
tains nowhere  else  among  distinct  communities,  and 
require  that  the  fugitive  from  this  relation  of  a pure- 
ly local  character,  who  has  committed  no  crime,  and 
has  fled  only  to  acquire  a natural  liberty,  shall  be 
restored  to  the  dominion  of  the  local  law  which  de- 
clares him  to  be  a slave?  Why  should  the  States 


462 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


which  had  abolished,  or  were  about  to  abolish,  this 
relation,  consent  to  the  use  of  force  within  their  own 
territories,  for  the  purpose  of  upholding  the  relation 
in  other  States  ? These  questions  are  pertinent  to 
the  estimate  "VYhich  mankind  may  be  called  upon  to 
form  concerning  the  provisions  of  our  national  Con- 
stitution, and  they  admit  of  an  answer. 

The  most  material  answer  to  them  is,  that,  with- 
out some  stipulation  on  the  part  of  the  States  where 
slavery  was  not  to  exist  that  their  free  territory 
should  not  be  made  the  means  of  a practical  inter- 
ference with  the  relation  in  other  States,  the  mere 
concession  of  the  abstract  principle  that  slavery  was 
to  he  exclusively  under  the  control  of  State  authority 
would  have  been  of  no  real  value  to  any  one  of  the 
States,  or  to  any  of  their  inhabitants,  of  either  race. 
But  some  active  security  for  this  principle  was  of  the 
utmost  importance,  not  merely  as  a concession  which 
would  secure  the  formation  of  the  new  Union,  but  as 
a means  to  secure  the  beneficent  working  of  the  Con- 
stitution after  its  acceptance  had  been  obtained.  It 
was  as  important  to  the  black  race  as  it  was  to  the 
whites ; for  it  is  not  to  be  doubted,  that  the  continu- 
ance of  a division  into  separate  States,  and  the  firm 
maintenance  of  an  exclusive  local  authority  over  the 
domestic  relations  of  their  inhabitants,  have  been  the 
cause,  under  the  Divine  Providence,  of  a far  higher 
civilization,  and  consequently  of  a far  better  condi- 
tion of  the  subjected  race,  than  could  have  been  at- 
tained in  the  same  localities  if  the  States  had  been  in 
all  respects  resolved  into  one  consolidated  republic. 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


463 


Let  the  reader  spread  before  him  the  map  of  the 
thirteen  republics  of  1787,  and  mark  upon  each  of 
them  the  relative  numbers  of  their  white  and  colored 
inhabitants,  and  then  efface  the  boundaries  of  the 
States.  Let  him  imagine  all  legislative  power,  all 
the  superintending  care  of  government,  withdrawn 
into  a central  authority,  whose  seat  must  have  been 
somewhere  near  the  centre  of  the  free  white  popula- 
tion. Let  him  observe  how  that  population  must 
have  tended  away  from  the  regions  where  the  labor 
of  slaves  would  be  most  productive,  and  how  dense 
the  slave  populations  must  there  have  become.  All 
that  now  constitutes  the  pride  of  men  in  their  sepa- 
rate State,  that  induces  to  residence  and  makes  it  the 
home  of  their  affections,  would  have  passed  away; 
and  at  the  same  time,  vast  tracts  of  wonderful  fertil- 
ity must  have  retained  the  African,  and  with  him 
scarcely  any  white  man  but  the  speculator,  the  over- 
seer, and  a solitary  tradesman.  Into  such  regions 
as  those,  the  national  authority  could  not  have  pen- 
etrated with  success.  Legislation  would  have  want- 
ed the  necessary  machinery,  by  which  to  reach  and 
elevate  the  condition  of  society  at  such  remote  ex- 
tremities from  the  centre.  A more  than  Russian 
despotism  would  not  have  sufficed  to  carry  the 
authority  of  government  and  the  restraints  of  law 
into  communities  so  depopulated  of  freemen,  so  filled 
with  slaves,  and  so  far  removed  from  the  seat  of 
power. 

But  now  let  the  same  map  be  again  unfolded,  with 
all  the  lines  that  mark  the  distinct  sovereignties  of 


464 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


the  States.  In  each  of  them  there  is  a complete  and 
efficient  government.  Each  has  its  history,  unbro- 
ken since  the  first  settlers  laid  the  foundations  of  a 
State.  In  each  there  is  a centre  of  civilization,  a 
source  of  law,  and  the  public  conscience  of  an  organ- 
ized self-governing  community.  Each  of  them  can 
act,  and  does  act,  upon  the  condition  of  the  African 
race  within  its  ovTn  limits,  according  to  its  own  judg- 
ment of  the  exigencies  of  the  case ; and  it  is  a fact 
capable  of  easy  verification,  that,  in  the  progress  of 
three  quarters  of  a century,  this  local  power  has  ef- 
fected for  that  race  what  no  national  legislature  could 
have  accomplished.  For,  if  we  look  back  to  the  pe- 
riod when  the  Constitution  of  the  United  States  was 
adopted,  and  suppose  it  to  have  acquired  the  means 
of  acting  on  the  institution  of  slavery  within  the 
States,  we  shall  see  that,  if  the  national  authority 
had  approached  the  subject  of  emancipation  at  all, 
it  must  have  applied  the  same  rule  in  South  Caro- 
lina as  in  Pennsylvania,  and  at  the  same  time.  But 
the  emancipation  of  the  half  a million  of  slaves  held 
in  widely  different  proportions  in  the  various  subdi- 
visions of  the  country,  or  of  their  still  more  numer- 
ous descendants,  by  a single  and  uniform  measure 
comprehending  them  all,  would  at  no  time  since  the 
Constitution  was  adopted  have  been  a merciful  or  de- 
fensible act.  Nothing  could  have  remained,  there- 
fore, for  the  national  power  to  do,  but  to  attempt 
such  legislation  as  might  tend  to  regulate  and  ame- 
liorate the  condition  of  servitude ; and  such  legisla- 
tion must  have  been  vdiolly  ineffectual,  and  would 


Ch.  XV.] 


FUGITIVES  FROM  SERVICE. 


465 


soon  have  been  abandoned,  or  been  superseded  by 
schemes  that  must  have  increased  the  evils  which 
they  aimed  to  remove. 

In  thus  placing  a high  value  upon  the  exclusive 
power  of  the  separate  States  over  this  the  most  deli- 
cate and  embarrassing  of  all  the  social  problems  in- 
volved in  their  destiny,  I have  not  forgotten  that, 
since  the  adoption  of  the  national  Constitution,  nine 
slave  States  have  been  added  to  the  Union,  and  that 
the  slaves  have  increased  to  more  than  three  millions. 
This  increase,  however,  has  not  been  in  a greater 
ratio  than  that  of  the  white  population,  nor  greater 
than  it  must  have  been  under  any  form  of  polity 
which  the  thirteen  original  States  might  have  seen 
tit  to  adopt  in  the  year  1787,  unless  that  polity  had 
had  a direct  tendency  to  restrain  the  growth  of  the 
country,  and  to  prevent  the  settlement  of  new  re- 
gions.1 As  it  is,  it  is  to  be  remembered  that,  wher- 
ever the  institution  of  slavery  has  gone,  there  has 
gone  with  it  the  system  of  State  government,  the 
power  and  organization  of  a distinct  community,  and 
consequently  a better  civilization  than  could  have 
been  the  lot  of  distant  provinces  of  a great  empire, 
or  distant  territories  of  a consolidated  republic. 

These  considerations  will  account  for  that  appar- 
ent inconsistency  which  has  sometimes  attracted  the 
attention  of  those  who  view  the  institutions  of  the 
United  States  from  a distance,  and  without  a suffi- 

1 In  1790,  the  slaves  numbered  to  3,204,313,  and  the  whites  to 
697,897,  and  the  whites  3,172,464.  19,533,068. 

In  1850,  the  slaves  had  increased 
59 


von.  ii. 


166 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


cient  knowledge  of  the  circumstances  in  which  they 
originated.  It  has  been  occasionally  made  a matter 
of  reproach,  that  a people  who  fought  for  political 
and  personal  freedom,  who  proclaimed  in  their  most 
solemn  papers  the  natural  rights  of  man,  and  who 
proceeded  to  form  a constitution  of  government  that 
would  best  secure  the  blessings  of  liberty  to  them- 
selves and  their  posterity,  should  have  left  in  their 
borders  certain  men  from  whom  those  rights  and 
blessings  are  withheld.  But  in  truth  the  condition 
of  the  African  slaves  was  neither  forgotten  nor  disre- 
garded by  the  generation  who  established  the  Con- 
stitution of  the  United  States ; and  it  was  dealt  with 
in  the  best  and  the  only  mode  consistent  with  the 
facts  and  with  their  welfare.  The  Constitution  of 
the  United  States  does  not  purport  to  secure  the 
blessings  of  liberty  to  all  men  within  the  limits  of 
the  Union,  but  to  the  people  who  established  it,  and 
their  posterity.  It  could  not  have  done  more ; for 
the  slaveholding  States  could  not,  and  ought  not,  to 
have  entered  a Union  which  would  have  conferred 
freedom  upon  men  incapable  of  receiving  it,  or  which 
would  have  required  those  States  to  surrender  to  a 
central  and  insufficient  power  that  trust  of  custody 
and  care  which,  in  the  providence  of  God,  had  been 
cast  upon  their  more  effectual  local  authority.  The 
reproach  to  which  they  would  have  been  justly  liable 
would  have  been  that  which  would  have  followed  a 
desertion  of  the  duty  they  owed  to  those  who  could 
not  have  cared  for  themselves,  and  whose  fate  would 
have  been  made  infinitely  worse  by  a consolidation 


Ch.  XV.] 


SUPPOSED  INCONSISTENCY. 


467 


of  all  government  into  a single  community,  or  by  an 
attempt  to  extend  the  principles  of  liberty  to  all  men. 
The  case  is  reduced,  therefore,  to  the  single  question, 
whether  the  people  of  the  United  States  should  have 
foregone  the  blessings  of  a free  republican  govern- 
ment, because  they  were  obliged  by  circumstances  to 
limit  the  application  of  the  maxims  of  liberty  on 
which  it  rests.  On  this  question,  they  may  challenge 
the  judgment  of  the  world. 


CHAPTER  XYI. 


Report  of  the  Committee  of  Detail,  concluded.  — Guar- 
anty of  Republican  Government  and  Internal  Tranquil- 
lity. — Oath  to  support  the  Constitution.  — Mode  of 
Amendment.  — Ratification  and  Establishment  of  the 
Constitution.  — Signing  by  the  Members  of  the  Con- 
vention. 

The  power  and  duty  of  the  United  States  to 
guarantee  a republican  form  of  government  to  each 
State,  and  to  protect  each  State  against  invasion  and 
domestic  violence,  had  been  declared  by  a resolution, 
the  general  purpose  of  which  has  been  already  de- 
scribed. It  should  be  said  here,  however,  that  the 
objects  of  such  a provision  were  two ; first,  to  pre- 
vent the  establishment  hi  any  State  of  any  form  of 
government  not  essentially  republican  in  its  char- 
acter, whether  by  the  action  of  a minority  or  of  a 
majority  of  the  inhabitants ; second,  to  protect  the 
State  against  invasion  from  without,  and  against 
every  form  of  domestic  violence.1  When  the  com- 
mittee of  detail  came  to  give  effect  to  the  resolution, 
they  prepared  an  article,  which  made  it  the  duty  of 
the  United  States  to  guarantee  to  each  State  a repub- 
lican form  of  government,  and  to  protect  each  State 
against  invasion,  without  any  application  from  its 


1 Elliot,  V.  332,  333. 


Ch.  XVI.]  guaranty  op  republicanism. 


469 


authorities ; and  to  protect  the  State  against  do- 
mestic violence,  on  the  application  of  its  legisla- 
ture.1 No  change  was  made  by  the  Convention  in 
the  substance  of  this  article,  excepting  to  provide 
that  the  application,  in  a case  of  domestic  violence, 
may  be  made  by  the  executive  of  the  State,  when  the 
legislature  cannot  be  convened.2 

It  now  remains  for  me  to  state  what  appears  to 
have  been  the  meaning  of  the  framers  of  the  Con- 
stitution, embraced  in  these  provisions.  It  is  ap- 
parent, then,  from  all  the  proceedings  and  discussions 
on  this  subject,  that,  by  guaranteeing  a republican 
form  of  government,  it  was  not  intended  to  maintain 
the  existing  constitutions  of  the  States  against  all 
changes.  This  would  have  been  to  exercise  a con- 
trol over  the  sovereignty' of  the  people  of  a State, 
inconsistent  with  the  nature  and  purposes  of  the 
Union.  The  people  must  be  left  entirely  free  to 
change  their  fundamental  law,  at  their  own  pleasure, 
subject  only  to  the  condition,  that  they  continue  the 
republican  form  of  government.  The  question  arises 
then,  What  is  that  form  1 Does  it  imply  the  exist- 
ence of  some  organic  law,  establishing  the  depart- 
ments of  a government,  and  prescribing  their  powers, 
or  does  it  admit  of  a form  of  the  body  politic  under 
which  the  public  will  may  be  declared  from  time  to 
time,  either  with  or  without  the  agency  of  any  estab- 
lished organs  or  representatives  1 Is  it  competent  to 
a State  to  abolish  altogether  that  body  of  its  funda- 

1 First  draft  of  the  Constitution,  s Constitution,  Art.  IV.  § 4. 

Art.  XV 111.  Elliot,  V.  381. 


470 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


mental  law  which  we  call  its  Constitution,  and  to 
proceed  as  a mere  democracy,  enacting,  expounding, 
and  executing  laws  by  the  direct  action  of  the  peo- 
ple, and  without  the  intervention  of  any  repre- 
sentative system  constituting  what  is  known  as  a 
government  1 

The  Constitution  of  the  United  States  assumes,  in 
so  many  of  its  provisions,  that  the  States  will  possess 
organized  governments,  in  which  legislative,  execu- 
tive, and  judicial  departments  will  be  known  and 
established,  that  it  must  be  taken  for  granted  that 
the  existence  of  such  agents  of  the  public  will  is  a 
necessary  feature  of  a State  government,  within  the 
meaning  of  this  clause.  No  State  could  participate 
in  the  government  of  the  Union,  without  at  least 
two  of  these  agents,  namely,  a legislature  and  an 
executive ; for  the  people  of  a State,  acting  in  their 
primary  capacity,  could  not  appoint  a Senator  of  the 
United  States ; nor  fill  a vacancy  in  the  office  of 
Senator;  nor  appoint  Electors  of  the  President  of 
the  United  States,  without  the  previous  designation 
by  a legislature  of  the  mode  in  which  such  Electors 
were  to  be  chosen ; nor  apply  to  the  government  of 
the  United  States  to  protect  them  against  “ domestic 
violence,”  through  any  other  agent  than  the  legisla- 
ture or  the  executive  of  the  State.  It  is  manifest, 
therefore,  that  each  State  must  have  a government, 
containing  at  least  these  distinct  departments ; and 
whether  this  government  is  organized  periodically, 
under  mere  laws  perpetually  re-enacted,  and  subject 
to  perpetual  changes  without  reference  to  forms,  or 


Ch.  XVI.]  GUARANTY  OF  REPUBLICANISM. 


471 


under  standing  and  fundamental  laws,  changeable 
only  in  a prescribed  form,  and  being  so  far  what  is 
called  a constitution,  it  is  apparent  that  there  must 
be  a “ form  of  government  ” possessed  of  these  dis- 
tinct agencies. 

There  must  be,  moreover,  not  only  this  “ form  of 
government,”  but  it  must  be  a “ republican  ” form ; 
and  in  order  to  determine  the  sense  in  which  this 
term  qualifies  the  nature  of  the  government  in  other 
respects  besides  those  already  referred  to,  it  is  neces- 
sary to  take  into  view  the  previous  history  of  Ameri- 
can political  institutions,  because  that  history  shows 
wThat  is  meant,  in  the  American  sense,  by  a “ repub- 
lican ” government. 

History,  then,  establishes  the  fact,  that,  in  the 
American  system  of  government,  the  people  are  re- 
garded as  the  sole  original  source  of  all  political 
authority;  that  all  legitimate  government  must  rest 
upon  their  will.  But  it  also  teaches  that  the  will  of 
the  people  is  to  be  exercised  through  representative 
forms.  For  even  in  the  exercise  of  original  suffrage, 
which  has  never  been  universal  in  any  of  the  States 
of  the  Union,  and  in  the  bestowal  of  power  upon  par- 
ticular organs,  those  who  are  regarded  as  competent 
to  express  the  will  of  society  are,  in  that  expression, 
deemed  to  represent  all  its  members ; and  those  who, 
in  the  distribution  of  political  functions,  exercise  the 
sovereignty  of  the  people,  so  far  as  it  has  been  thus 
imparted  to  them,  exercise  a representative  function, 
to  which  they  are  appointed,  directly  or  indirectly,  by 
popular  suffrage,  that  may  be  more  or  less  restricted. 


472 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


according  to  the  public  will.  It  may  be  said,  there- 
fore, with  strictness,  that  in  the  American  system  a 
republican  government  is  one  based  on  the  right  of 
the  people  to  govern  themselves,  but  requiring  that 
right  to  be  exercised  through  public  organs  of  a rep- 
resentative character ; and  these  organs  constitute 
the  government.  How  much  or  how  little  power 
shall  be  imparted  to  this  government,  what  restric- 
tions shall  be  imposed  upon  it,  and  what  the  precise 
functions  of  its  several  departments  shall  be,  with 
respect  to  the  internal  concerns  of  the  State,  the 
Constitution  of  the  United  States  leaves  untouched, 
except  in  a few  particulars.  It  merely  declares  that 
a government  having  the  essential  characteristics  of 
an  American  republican  system  shall  be  guaranteed 
by  the  United  States ; that  is  to  say,  that  no  other 
shall  be  permitted  to  be  established. 

The  provision  by  which  the  State  is  protected 
against  domestic  violence  was  necessary  to  complete 
the  republican  character  of  the  system  intended  to 
be  upheld.  The  Constitution  of  the  United  States 
assumes  that  the  governments  of  the  States,  existing 
when  it  goes  into  operation,  are  rightfully  hi  the  ex- 
ercise of  the  authority  of  the  State,  and  will  so  con- 
tinue until  they  are  changed.  But  it  means  that  no 
change  shall  be  made  by  force,  by  public  commotion, 
or  by  setting  aside  the  authority  of  the  existing  gov- 
ernment. It  recognizes  the  right  of  that  government 
to  be  protected  against  domestic  violence ; in  which 
expression  is  to  be  included  every  species  of  force 
directed  against  that  government,  excepting  the  will 


Ch.  XVI.] 


AMENDMENT. 


473 


of  the  people  operating  to  change  it  through  the 
forms  of  constitutional  action. 

The  next  topic  on  which  the  Convention  was  re- 
quired to  act  was  the  question  whether  the  Consti- 
tution should  be  made  capable  of  amendment,  and 
in  what  mode  amendments  were  to  be  proposed  and 
adopted.  The  Confederation,  from  its  nature  as  a 
league  between  States  otherwise  independent  of  each 
other,  was  made  incapable  of  alteration  excepting  by 
the  unanimous  consent  of  the  States.  It  affords  a 
striking  illustration  of  the  different  character  of  the 
government  established  by  the  Constitution,  that  a 
mode  was  devised  by  which  changes  in  the  organic 
law  could  become  obligatory  upon  all  the  States,  by 
the  action  of  a less  number  than  the  whole. 

The  frame  of  government  which  the  members  of 
the  Convention  were  endeavoring  to  establish,  if  once 
adopted,  was  to  endure,  as  a continuing  power,  in- 
definitely; and  that  it  might,  as  far  as  possible,  be 
placed  beyond  the  danger  of  destruction,  it  was  ne- 
cessary to  make  it  subject  to  such  peaceful  changes 
as  experience  might  render  proper,  and  which,  by  be- 
ing made  capable  of  introduction  by  the  organic  law 
itself,  would  preserve  the  identity  of  the  government. 
The  existence  and  operation  of  a prescribed  method 
of  changing  particular  features  of  a government  mark 
the  line  between  amendment  and  revolution,  and  ren- 
der a resort  to  the  latter,  for  the  purpose  of  meliora- 
tion or  reform,  save  in  extreme  cases  of  oppression, 
unnecessary.  According  to  our  American  theory  of 
government,  revolution  and  amendment  both  rest 
60 


VOL.  II. 


474 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


upon  the  doctrine,  that  the  people  are  the  source  of 
all  political  power,  and  each  of  them  is  the  exercise 
of  an  ultimate  right.  But  this  right  is  exercised,  in 
the  process  of  amendment,  in  a prescribed  form, 
which  preserves  the  continuity  of  the  existing  gov- 
ernment, and  changes  only  such  of  its  fundamental 
rules  as  require  revision,  without  the  destruction  of 
any  public  or  private  rights  that  may  have  become 
vested  under  the  former  rule.  Revolution,  on  the 
contrary,  proceeds  without  form,  is  the  violent  dis- 
ruption of  the  obligations  resting  on  the  authority 
of  the  former  government,  and  terminates  its  exist- 
ence often,  without  saving  any  of  the  rights  which 
may  have  grown  up  under  it.  The  question,  there- 
fore, whether  the  Constitution  should  be  made  capa- 
ble of  amendment,  was  identical  with  the  question 
whether  some  mode  of  amending  it  should  be  pre- 
scribed in  the  instrument  itself,  since,  without  an 
ascertained  and  limited  method  of  proceeding,  all 
change  becomes,  in  effect,  revolution ; and  this  was 
accordingly,  in  substance,  the  same  as  the  question 
whether  revolution  should  be  the  only  method  by 
which  the  American  people  could  ever  modify  their 
system  of  government,  when  in  the  progress  of  time 
changes  might  become  indispensable. 

It  was  originally  proposed  in  the  Convention,  that 
provision  should  be  made  for  amending  the  Consti- 
tution, without  requiring  the  assent  of  the  national 
legislature.1  But  this  was  justly  regarded  as  a very 
important  question,  and  the  Convention  came  to  no 
1 Elliot,  V.  157. 


Ch.  XVI.] 


AMENDMENT. 


475 


other  decision,  when  the  committee  of  detail  were  in- 
structed, than  to  declare  that  provision  ought  to  be 
made  for  amending  the  Constitution  whenever  it 
should  seem  necessary.1  The  mode  selected  by  the 
committee,  and  embraced  in  the  first  draft  of  the 
instrument,  was  to  have  a convention  called  by  the 
Congress,  when  applied  for  by  the  legislatures  of 
two  thirds  of  the  States ; but  they  did  not  declare 
whether  the  legislatures  were  to  propose  amend- 
ments and  the  convention  was  to  adopt  them,  or 
whether  the  convention  was  both  to  propose  and 
adopt  them,  or  only  to  propose  them  for  adoption 
by  some  other  body  or  bodies  not  specified.  There 
lay,  therefore,  at  the  basis  of  this  whole  subject,  the 
very  grave  question  whether  there  should  ever  be 
another  national  convention,  to  act  in  any  manner 
upon  or  in  reference  to  the  national  Constitution, 
after  its  adoption,  and  if  so,  what  its  functions  and 
authority  were  to  be.  There  would  follow,  also,  the 
further  question,  whether  this  should  be  the  sole 
method  in  which  the  Constitution  should  be  made 
capable  of  amendment.  Several  reasons  concurred 
to  render  it  highly  inexpedient  to  make  a resort  to 
a convention  the  sole  method  of  reaching  amend- 
ments, and  we  can  now  see  that  the  decision  that 
was  made  on  this  subject  was  a wise  one.  It  was 
a rare  combination  of  circumstances  that  gave  to  the 
first  national  Convention  its  success.  The  war  of 
the  Revolution,  and  the  exigencies  which  it  caused, 
had  produced  a class  of  men,  possessing  an  influence, 


1 Elliot,  V.  376. 


476 


FORMATION  OF  THE  CONSTITUTION.  IBook  IV. 


as  well  as  qualifications  for  the  duty  assigned  to 
them,  that  would  not  be  likely  to  be  again  witnessed. 
Of  these  men,  Washington  was  the  head;  and  no 
second  Washington  could  be  looked  for.  The  pecu- 
liar crisis,  too,  occasioned  by  the  total  failure  of  the 
Confederation,  notwithstanding  the  apparent  fitness 
and  actual  necessity  of  that  government  at  the  time 
of  its  formation,  could  never  occur  again.  There 
were,  moreover,  but  thirteen  States  in  the  confed- 
eracy, nearly  all  of  which  dated  their  settlement  and 
their  existence  as  political  communities  from  about 
the  same  period,  and  all  had  passed  through  the  same 
revolutionary  history.  But  the  number  of  the  States 
was  evidently  destined  to  be  greatly  increased,  and 
the  new  members  of  the  Union  would  also  be  likely 
to  be  very  different  in  character  from  the  old  States. 
It  was  not  probable,  therefore,  that  the  time  would 
ever  arrive  when  the  people  of  the  United  States 
would  feel  that  another  national  convention,  for 
the  purpose  of  acting  on  the  national  Constitution, 
would  be  safe  or  practicable.  Still,  it  would  not 
have  been  proper  to  have  excluded  the  possibility  of 
a resort  to  this  method  of  amendment ; since  the 
national  legislature  might  itself  be  interested  to 
perpetuate  abuses  springing  from  defects  in  the 
Constitution,  and  to  incur  the  hazards  attending  a 
convention  might  become  a far  less  evil  than  the 
continuance  of  such  abuses,  or  the  failure  to  make 
the  necessary  reforms. 

But  it  was  indispensable  that  the  precise  functions 
and  authority  of  such  a convention  should  be  defined, 


Ch.  XVI.] 


AMENDMENT. 


477 


lest  its  action  might  result  in  revolution.  The 
method  of  amendment  proposed  by  the  committee 
of  detail  did  not  enable  the  Congress  to  call  a con- 
vention on  them  own  motion,  and  did  not  prescribe 
the  action  of  such  a body,  or  provide  any  mode  in 
which  the  amendments  proposed  by  it  should  be 
adopted.  Hamilton  and  Madison  both  opposed  this 
plan ; — the  former,  because  it  was  inadequate,  and 
because  he  considered  it  desirable  that  a much  easier 
method  should  be  devised  for  remedying  the  defects 
that  would  become  apparent  in  the  new  system ; 
the  latter,  on  account  of  the  vagueness  of  the  plan 
itself.  Accordingly,  Mr.  Madison  brought  forward, 
as  a substitute,  a method  of  proceeding,  which,  with 
some  modifications,  became  what  is  now  the  fifth 
article  of  the  Constitution;  namely,  that  the  Con- 
gress, whenever  two  thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments ; or, 
on  the  application  of  the  legislatures  of  two  thirds 
of  the  States,  shall  call  a convention  for  proposing 
amendments.  In  either  case,  the  amendments  pro- 
posed are  to  become  valid  as  part  of  the  Consti- 
tution, when  ratified  by  the  legislatures  of  three 
fourths  of  the  States,  or  by  conventions  in  three 
fourths  of  the  States,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress.1 

But  when  this  provision  had  been  agreed  upon, 
the  grave  question  arose,  whether  the  power  of 
amendment  was  to  be  subjected  to  any  limitations. 
There  were  two  objects,  in  respect  to  which,  as  we 

l Elliot,  V.  530-532. 


478  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

have  more  than  once  had  occasion  to  see,  different 
classes  of  the  States  felt  great  jealousy.  One  of  them 
had  been  covered  by  the  stipulations  that  the  States 
should  not  be  prohibited  before  the  year  1808  from 
admitting  further  importations  of  slaves,  and  that  no 
capitation  or  other  direct  tax  should  be  laid  unless 
in  proportion  to  the  census  or  enumeration  of  the 
inhabitants  of  the  States,  in  which  three  fifths  only 
of  the  slaves  were  included.1  The  other  was  the 
equality  of  representation  in  the  Senate,  so  long  and 
at  length  so  successfully  contended  for  by  the  small- 
er States.2  At  the  instance  of  Mr.  Rutledge  of  South 
Carolina,  a proviso  was  added,  which  forbade  any 
amendment  before  the  year  1808  affecting  in  any 
manner  the  clauses  relating  to  the  slave-trade  and 
the  capitation  or  other  direct  taxes.3  This  proviso 
having  now  become  inoperative,  those  clauses  are, 
like  others,  subject  to  amendment.  At  the  instance 
of  Mr.  Sherman  of  Connecticut,  a restriction  that  is 
of  perpetual  force  was  placed  upon  the  power  of 
amendment,  which  prevents  each  State  from  being 
deprived  of  its  equality  of  representation  in  the  Sen- 
ate, without  its  consent.4 

The  oath  or  affirmation  to  support  the  Constitu- 
tion was  provided  for  by  the  committee  of  detail,  in 
accordance  with  the  resolution  directing  that  it 
should  be  taken  by  the  members  of  both  houses  of 
Congress  and  of  the  State  legislatures,  and  by  all 


1 Constitution,  Art.  I.  § 9. 

2 Ibid.  Art.  I.  § 3. 

3 Elliot,  V.  532. 


4 Ibid.  551,  552.  Constitution, 
Art.  I §3. 


Ch.  XVI.] 


RATIFICATION. 


479 


executive  and  judicial  officers  of  the  United  States 
and  of  the  several  States;  and  for  the  purpose  of 
for  ever  preventing  any  connection  between  church 
and  state,  and  any  scrutiny  into  men’s  religious  opin- 
ions, the  Convention  unanimously  added  the  clause, 
that  “ no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the 
United  States.”1 

We  are  next  to  ascertain  in  what  mode  the  Con- 
stitution, which  had  thus  been  framed,  was  to  pro- 
vide for  its  own  establishment  and  authority.  There 
is  a great  difference  between  the  importance  of  this 
question,  as  it  presented  itself  to  the  framers  of  the 
Constitution,  and  its  importance  to  this  or  any  suc- 
ceeding generation.  To  us  it  is  chiefly  interesting 
because  it  displays  the  basis  of  a government  which 
has  been  established  for  seventy  years  over  the  thir- 
teen original  States  of  the  confederacy,  and  is  now 
acknowledged  by  more  than  twice  the  number  of 
those  original  States.  To  those  who  made  the  Con- 
stitution, and  to  the  people  who  were  to  vote  upon 
it  and  to  put  it  into  operation,  the  mode  in  which  it 
was  to  become  the  organic  law  of  the  Union  was  a 
topic  of  serious  import  and  delicacy.  It  involved 
the  questions,  of  what  course  would  be  politic  with 
reference  to  the  people ; of  what  would  be  practica- 
ble ; of  the  initiation  of  the  new  government  without 
force ; of  its  establishment  on  a firm,  just,  and  legit- 
imate authority;  and  of  its  right  to  supersede  the 
Confederation,  without  a breach  of  faith  toward  the 


1 Constitution,  Art.  VI. 


480 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


members  of  that  body  by  whose  inhabitants  the  new 
system  might  be  rejected. 

The  Convention  had  already  decided  that  the  Con- 
stitution must  be  ratified  by  the  people  of  the  States ; 
but  a difficulty  had  all  along  existed,  in  the  opinions 
held  by  some  of  the  members  respecting  the  compact 
then  subsisting  between  the  States,  which  they  re- 
garded as  indissoluble  but  by  the  consent  of  all  the 
parties  to  it.  The  resolution,  which  the  committee 
of  detail  were  instructed  to  carry  out,  had  declared 
that  the  new  plan  of  government  should  first  be  sub- 
mitted to  the  approbation  of  the  existing  Congress, 
and  then  to  assemblies  of  representatives  to  be  recom- 
mended by  the  State  legislatures  and  to  be  expressly 
chosen  by  the  people  to  consider  and  decide  upon  it. 
But  this  direction  embraced  no  decision  of  the  ques- 
tion, whether  the  ratification  by  the  people  of  a less 
number  than  all  the  States  should  be  sufficient  for 
putting  the  government  into  operation.  If  the  people 
of  a smaller  number  than  the  whole  of  the  States 
could  establish  this  form  of  government,  what  was 
to  be  its  future  relation  to  the  States  which  might 
reject  or  refuse  to  consider  it  ? Could  any  number 
of  the  States  thus  withdraw  themselves  from  the 
Confederation,  and  establish  for  themselves  a new 
general  government,  and  could  that  government  have 
any  authority  over  the  rest?  Various  and  widely 
opposite  theories  were  maintained.  One  opinion 
was,  that  all  the  States  must  accept  the  Constitution, 
or  it  would  be  a nullity ; — another,  that  a major- 
ity of  the  States  might  establish  it,  and  so  bind  the 


Ch.  XVI.] 


EATIFICATION. 


481 


minority,  upon  the  principle  that  the  Union  was  a 
society  subject  to  the  control  of  the  greater  part  of 
its  members ; — still  another,  that  the  States  which 
might  ratify  it  would  bind  themselves,  but  no  one 
else. 

The  truth  with  regard  to  these  questions,  which 
perplexed  the  minds  of  men  in  that  assembly  some- 
what in  proportion  to  their  acuteness  and  their  prone- 
ness to  metaphysical  speculations,  was  in  reality  not 
very  far  off.  The  Articles  of  Confederation  had  cer- 
tainly declared  that  no  alteration  should  be  made  in 
any  of  them,  unless  first  proposed  by  the  Congress, 
and  afterwards  unanimously  agreed  to  by  the  State 
legislatures.  But  in  two  very  important  particulars 
the  Convention  had  already  passed  beyond  what  could 
be  deemed  an  alteration  of  those  Articles.  They  had 
prepared  and  were  about  to  propose  a system  of  gov- 
ernment that  would  not  merely  alter,  but  would 
abolish  and  supersede,  the  Confederation ; and  they 
had  determined  to  obtain,  what  they  regarded  as  a 
legitimate  authority  for  this  purpose,  the  consent  of 
the  people  of  the  States,  by  whose  will  the  State  gov- 
ernments existed,  from  whom  those  governments  de- 
rived their  authority  to  enter  into  the  compact  of  the 
Confederation,  and  whose  sovereign  right  to  amelio- 
rate their  own  political  condition  could  not  be  dis- 
puted. This  system  they  intended  should  be  offered 
to  all.  The  refusal  of  some  States  to  accept  it  could 
not,  upon  principles  of  natural  justice  and  right, 
oblige  the  others  to  remain  fettered  to  a government 

which  had  been  pronounced  by  twelve  of  the  thirteen 
61 


VOL.  II. 


482  FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 

legislatures  to  be  defective  and  inadequate  to  the  ex- 
igencies of  the  Union.  At  the  same  time,  the  inde- 
pendent political  existence  of  the  people  of  each 
State  made  it  impossible  to  treat  them  as  a minority 
subject  to  the  power  of  such  majority  as  would  be 
formed  by  the  States  that  might  adopt  the  Constitu- 
tion. If  the  people  of  a State  should  ratify  it,  they 
would  be  bound  by  it.  If  they  should  refuse  to  rat- 
ify it,  they  would  simply  remain  out  of  the  new 
Union  that  would  be  formed  by  the  rest.  It  was 
therefore  determined  that  the  Constitution  should 
undertake  to  be  in  force  only  in  those  States  by 
whose  inhabitants  it  might  be  adopted.1 

Then  came  the  question,  in  what  mode  the  assent 
of  the  people  of  the  States  was  to  be  given.  The 
constitution  of  one  of  the  States2  provided  that  it 
should  be  altered  only  in  a prescribed  mode ; and  it 
was  said  that  the  adoption  of  the  Constitution  now 
proposed  would  involve  extensive  changes  in  the 
constitution  of  every  State.  This  was  equally  true 
of  the  constitutions  of  those  States  which  had  pro- 
vided no  mode  for  making  such  changes,  and  in 
which  the  State  officers  were  all  bound  by  oath  to 
support  the  existing  constitution.  These  difficul- 
ties, however,  were  by  no  means  insurmountable. 
It  was  universally  acknowledged  that  the  people  of 
a State  were  the  fountain  of  all  political  power,  and 
if,  in  the  method  of  appealing  to  them,  the  consent 
of  the  State  government  that  such  appeal  should  be 
made  were  involved,  there  could  be  no  question  that 


1 Elliot,  V.  499. 


2 Maryland. 


Ch.  XVI.] 


KATIFICATION. 


483 


the  proceeding  would  be  in  accordance  with  what 
had  always  been  regarded  as  a cardinal  principle  of 
American  liberty.  For,  since  the  birth  of  that  lib- 
erty, it  had  been  always  assumed  that,  when  it  has 
become  necessary  to  ascertain  the  will  of  the  people 
on  a new  exigency,  it  is  for  the  existing  legislative 
power  to  provide  for  it  by  an  ordinary  act  of  legisla- 
tion.1 

Whatever  changes,  therefore,  in  the  State  consti- 
tutions might  become  necessary  in  consequence  of 
the  adoption  of  the  national  Constitution,  it  would 
be  a just  presumption  that  the  will  of  the  people, 
duly  ascertained  by  their  legislature,  had  decided,  by 
that  adoption,  that  such  changes  should  be  made ; 
and  the  formal  act  of  making  them  could  follow  at 
any  time  when  arrangements  might  be  made  for  it. 
But  if  no  mode  of  ratification  of  the  national  Consti- 
tution were  to  be  prescribed,  and  it  were  left  to  each 
State  to  act  upon  it  in  any  manner  that  it  might 
prefer,  there  would  be  no  uniformity  in  the  mode  of 
creating  the  new  government  in  the  different  States ; 
and  if  the  Convention  antathe  Congress  were  to  refer 
its  adoption  to  the  State  legislatures,  it  would  not 
rest  on  the  direct  authority  of  the  people.  For 
these  reasons,  the  Convention  adhered  to  the  plan 
of  having  the  Constitution  submitted  directly  to  as- 
semblies of  representatives  of  the  people  in  each 
State,  chosen  for  the  express  purpose  of  deciding  on 
its  adoption.2 

1 Works  of  Daniel  Webster,  VI.  2 The  vote,  however,  was  only 

227.  six  States  to  four.  Elliot,  V.  500. 


484 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


There  was  still  another  question,  of  great  practical 
importance,  to  be  determined.  Was  the  Constitution 
to  go  into  operation  at  all,  unless  adopted  by  all  the 
States,  and  if  so,  what  number  should  be  sufficient 
for  its  establishment'?  It  appeared  clearly  enough, 
that  to  require  a unanimous  adoption  would  defeat 
all  the  labors  of  the  Convention.  Rhode  Island  had 
taken  no  part  in  the  formation  of  the  Constitution, 
and  could  not  be  expected  to  ratify  it.  New  York 
had  not  been  represented  for  some  weeks  in  the  Con- 
vention, and  it  was  at  least  doubtful  how  the  people 
of  that  State  would  receive  the  proposed  system,  to 
which  a majority  of  their  delegates  had  declared 
themselves  to  be  strenuously  opposed.1  Maryland 
continued  to  be  present  in  the  Convention,  and  a 
majority  of  her  delegates  still  supported  the  Con- 
stitution ; but  Luther  Martin  confidently  predicted 
its  rejection  by  the  State,  and  it  was  evident  that 
his  utmost  energies  would  be  put  forth  against  it. 
Under  these  circumstances,  to  have  required  a unan- 
imous adoption  by  the  States  would  have  been  fatal 
to  the  experiment  of  creating  a new  government. 
Some  of  the  members  were  in  favor  of  such  a num- 
ber as  would  form  both  a majority  of  the  States  and 
a majority  of  the  people  of  the  United  States.  But 

1 Two  of  the  New  York  dele-  he  was  again  in  the  city  of  New 
gates,  Messrs.  Yates  and  Lansing,  York  on  the  20th  of  August,  and 
left  the  Convention  on  the  5th  of  that  he  remained  there  until  the 
July.  Hamilton  had  previously  re-  28th.  On  the  6th  of  September 
turned  to  the  city  of  New  York,  on  he  was  in  the  Convention.  The 
private  business.  He  left  June  29  vote  of  the  State  was  not  taken  in 
and  returned  August  13.  It  ap-  the  Convention  after  the  retirement 
pears  from  his  correspondence  that  of  Yates  and  Lansing. 


Cn.  XVI.] 


SIGNING. 


485 


there  was  an  idea  familiar  to  the  people,  in  the  num- 
ber that  had  been  required  under  the  Confederation 
upon  certain  questions  of  grave  importance ; and  in 
order  that  the  Constitution  might  avail  itself  of  this 
established  usage,  it  was  determined  that  the  ratifi- 
cations of  the  conventions  of  nine  States  should  be 
sufficient  to  establish  the  Constitution  between  the 
States  that  might  so  ratify  it.1 

The  Constitution,  as  thus  finally  prepared,  re- 
ceived the  formal  assent  of  the  States  in  the  Con- 
vention, on  the  last  day  of  the  session.2  The  great 
majority  of  the  members  desired  that  the  instrument 
should  go  forth  to  the  public,  not  only  with  an  of- 
ficial attestation  that  it  had  been  agreed  upon  by  the 
States  represented,  but  also  with  the  individual  sanc- 
tion and  signatures  of  their  delegates.  Three  of  the 
members  present,  however,  Randolph  and  Mason  of 
Virginia,  and  Gerry  of  Massachusetts,  notwithstand- 
ing the  proposed  form  of  attestation  contained  no 
personal  approbation  of  the  system,  and  signified 
only  that  it  had  been  agreed  to  by  the  unanimous 
consent  of  the  States  then  present,  refused  to  sign 
the  instrument.3  The  objections  which  these  gen- 
tlemen had  to  different  features  of  the  Constitution 
would  have  been  waived,  if  the  Convention  had  been 
willing  to  take  a course  quite  opposite  to  that  which 

1 Elliot,  Y.  499-501.  The  ar-  2 September  17. 
tide  embodying  this  decision  was  3 This  form  of  attestation  had 
the  21st  in  the  report  of  the  com-  been  adopted  in  the  hope  of  gain- 
mittee  of  detail.  It  became,  on  the  ing  the  signatures  of  all  the  mem- 
revision,  Article  VIII.  of  the  Con-  bers,  but  without  success, 
stitution. 


486 


FORMATION  OF  THE  CONSTITUTION.  [Book  IV. 


had  been  thought  expedient.  They  desired  that  the 
State  conventions  should  he  at  liberty  to  propose 
amendments,  and  that  those  amendments  should  be 
finally  acted  upon  by  another  general  convention.1 
The  nature  of  the  plan,  however,  and  the  form  in 
which  it  was  to  be  submitted  to  the  people  of  the 
States,  made  it  necessary  that  it  should  be  adopted 
or  rejected  as  a whole,  by  the  convention  of  each 
State.  As  a process  of  amendment  by  the  action  of 
the  Congress  and  the  State  legislatures  had  been 
provided  in  the  instrument,  there  was  the  less  ne- 
cessity for  holding  a second  convention.  The  State 
conventions  would  obviously  be  at  liberty  to  propose 
amendments,  but  not  to  make  them  a condition  of 
their  acceptance  of  the  government  as  proposed. 

A letter  having  been  prepared  to  accompany  the 
Constitution,  and  to  present  it  to  the  consideration 
and  action  of  the  existing  Congress,  the  instrument 
was  formally  signed  by  all  the  other  members  then 
present.  The  official  record  sent  to  the  Congress  of 
the  resolutions,  which  directed  that  the  Constitution 
be  laid  before  that  body,  recited  the  presence  of  the 
States  of  New  Hampshire,  Massachusetts,  Connecti- 
cut, New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Geor- 
gia. New  York  was  not  regarded  as  officially  pres- 
ent ; but  in  order  that  the  proceedings  might  have 

1 Mr.  Madison  bas  given  the  nearly  all  met  by  the  subsequent 
principal  grounds  of  objection  amendments,  so  far  as  they  were 
which  these  gentlemen  felt  to  the  special,  and  did  not  relate  to  the 
Constitution.  It  is  not  necessary  general  tendency  of  the  system, 
to  repeat  them  here,  as  they  were  (See  Madison,  Elliot, V.  552-558.) 


Ch.  XVI.] 


THE  ISSUE. 


487 


all  the  weight  that  a name  of  so  much  importance 
could  give  to  them,  in  the  place  that  should  have 
been  tilled  by  his  State,  was  recited  the  name  of 
“Mr.  Hamilton  from  New  York.”  The  prominence 
thus  given  to  the  name  of  Hamilton,  by  the  absence 
of  his  colleagues,  was  significant  of  the  part  he  was 
to  act  in  the  great  events  and  discussions  that  were 
to  attend  the  ratification  of  the  instrument  by  the 
States.  His  objections  to  the  plan  were  certainly 
not  less  grave  and  important  than  those  which  were 
entertained  by  the  members  who  refused  to  give  to 
it  their  signatures ; but  like  Madison,  like  Pinckney 
and  Franklin  and  Washington,  he  considered  the 
choice  to  be  between  anarchy  and  convulsion,  on 
the  one  side,  and  the  chances  of  good  to  be  expected 
of  this  plan,  on  the  other.  Upon  this  issue,  in  truth, 
the  Constitution  went  to  the  people  of  the  United 
States.  There  is  a tradition,  that,  when  Washing- 
ton was  about  to  sign  the  instrument,  he  rose  from 
his  seat,  and,  holding  the  pen  in  his  hand,  after  a 
short  pause,  pronounced  these  words:  — “Should  the 
States  reject  this  excellent  Constitution,  the  proba- 
bility is  that  an  opportunity  will  never  again  offer 
to  cancel  another  in  peace,  — the  next  will  be  drawn 
in  blood.”1 

1 My  authority  for  this  anecdote  stated  by  a writer  who  dates  his 
is  the  Pennsylvania  Journal  of  No-  communication  from  Elizabeth- 
vember  14,  1787,  where  it  was  town,  November  7. 


i - . ' ' 

* . ‘ . •'  '( 

■ 

'■  ■ •'  >•'*■  if,'  ’ 

--  ■ - ~ r> : " 

. 

: . . . J . . . - ■ ■ ' ■*  v -.1 

j '■ . . ■ * « • . . .V'  • 

' ■'  :<•  ' -- ' r • 

. : t - 

' -t  .<  ■'  ■'  V'  ■■ 

!i 

i k , 

■ 

. .sv  ' ')‘>  ; ■’ 

i . . - . ■ ’ "•  ;•  '•  ■ i 

• V s 

> j«  ....  • -t  • . - <■ 

, 

' ' . 

- 

y . . ••  •.  ?'.»  .*< 


BOOK  V 


ADOPTION  OF  THE  CONSTITUTION. 


YOL.  II. 


62 


. r*  ' :n  L " 


CHAPTER  I. 


General  Reception  of  the  Constitution.  — Hopes  of  a Re- 
union with  Great  Britain.  — Action  of  the  Congress. — 
State  of  Feeling  in  Massachusetts,  New  York,  Virginia, 
South  Carolina,  Maryland,  and  New  Hampshire.  — Ap- 
pointment of  their  Conventions. 

The  national  Convention  was  dissolved  on  the 
14th  of  September.  The  state  of  expectation  and 
anxiety  throughout  the  country  during  its  delibera- 
tions, and  at  the  moment  of  its  adjournment,  will 
appear  from  a few  leading  facts  and  ideas,  which 
illustrate  the  condition  of  the  popular  mind  when 
the  Constitution  made  its  appearance. 

The  secrecy  with  which  the  proceedings  of  the 
Convention  had  been  conducted,  the  nature  of  its 
business,  and  the  great  eminence  and  personal  influ- 
ence of  its  principal  members,  had  combined  to  create 
the  deepest  solicitude  in  the  public  mind  in  all  the 
chief  centres  of  population  and  intelligence  through- 
out the  Union.  An  assembly  of  many  of  the  wisest 
and  most  distinguished  men  in  America  had  been 
engaged  for  four  months  in  preparing  for  the  United 
States  a new  form  of  government,  and  the  public 


492 


ADOPTION  OF  TILE  CONSTITUTION.  [Book  V. 


had  acquired  no  definite  knowledge  of  their  trans- 
actions, and  no  information  respecting  the  nature  of 
the  system  they  were  likely  to  propose.  Under 
these  circumstances,  we  may  expect  to  find  the  most 
singular  rumors  prevailing  during  the  session  of  the 
Convention,  and  a great  excitement  in  the  public 
mind  in  many  localities,  when  the  result  was  an- 
nounced. Among  the  reports  that  were  more  or  less 
believed  through  the  latter  part  of  the  summer,  was 
the  idle  one  that  the  Convention  were  framing  a 
system  of  monarchical  government,  and  that  the 
Bishop  of  Osnaburg  was  to  be  sent  for,  to  be  the 
sovereign  of  the  new  kingdom. 

Foolish  as  it  may  appear  to  us,  this  story  occa- 
sioned some  real  alarm  in  its  day.  It  is  to  be  traced 
to  a favorite  idea  of  that  class  of  Americans  who  had 
either  been  avowed  “ Tories  ” during  the  Revolution, 
or  had  secretly  felt  a greater  sympathy  with  the 
mother  country  than  with  the  land  of  their  birth, 
and  who  were  at  this  period  generally  called  “ Loyal- 
ists.” Some  of  these  persons  had  taken  no  part,  on 
either  side,  during  the  Revolutionary  war,  and  had 
abstained  from  active  participation  in  public  affairs 
since  the  peace.  They  were  all  of  that  class  of  minds 
whose  tendencies  led  them  to  the  belief  that  the  ma- 
terials for  a safe  and  efficient  republican  government 
were  not  to  be  found  in  these  States,  and  that  the 
public  disorders  could  be  corrected  only  by  a gov- 
ernment of  a very  different  character.  Their  feel- 
ings and  opinions  carried  them  towards  a reconcil- 
iation with  England,  and  their  grand  scheme  for  this 


Ch.  I.] 


THE  BISHOP  OP  OSNABURG. 


493 


purpose  was  to  invite  hither  the  titular  Bishop  of 
Osnaburg.1 

Their  numbers  were  not  large  in  any  of  the  States ; 
but  the  feeling  of  insecurity  and  the  dread  of  im- 
pending anarchy  were  shared  by  others  who  had  no 
particular  inclination  towards  England ; and  it  is  not 


1 It  may  be  amusing  to  Ameri- 
cans of  this  and  future  generations 
to  know  who  this  personage  was 
for  whom  it  was  rumored  that  the 
Loyalists  desired  to  “ send,”  and 
whose  advent  as  a possible  ruler  of 
this  country  was  a vague  apprehen- 
sion in  the  popular  mind  for  a good 
while,  and  finally  came  to  be  im- 
puted as  a project  to  the  framers 
of  the  Constitution.  The  Bishop 
of  Osnaburg  was  no  other  than  the 
late  Duke  of  York,  Frederick,  the 
second  son  of  King  George  III. ; a 
prince  whose  conduct  as  command- 
er-in-chief  of  the  army,  in  conse- 
quence of  the  sale  of  commissions 
by  his  mistress,  one  Mrs.  Clarke, 
became  in  1809  a subject  of  in- 
quiry, leading  to  the  most  scandal- 
ous revelations,  before  the  House 
of  Commons.  The  Duke  was  born 
in  1763,  and  was  consequently,  at 
the  period  spoken  of  in  the  text,  at 
the  ripe  age  of  twenty-four.  When 
about  a year  old  (1764),  he  was 
chosen  Bishop  of  Osnaburg.  This 
was  a German  province  (Osna- 
briick),  formerly  a bishopric  of 
great  antiquity,  founded  by  Char- 
lemagne . At  the  Reformation  most 
of  the  inhabitants  became  Luther- 
ans, and  by  the  Treaty  of  Westpha- 
lia it  was  agreed  that  it  should  be 


governed  alternately  by  a Roman 
Catholic  and  a Protestant  Bishop. 
In  1802  it  was  secularized,  and  as- 
signed as  an  hereditary  principal- 
ity to  George  III.,  in  his  capacity 
of  King  of  Hanover.  Prince  F red- 
erick  continued  to  be  called  by  the 
title  of  Bishop  of  Osnaburg,  until 
he  was  created  Duke  of  York.  I 
am  not  aware  that  the  whispers  of 
his  name  in  the  secret  counsels  of 
our  Loyalists,  as  a proposed  king 
for  America,  became  known  in 
England.  Whether  such  knowl- 
edge would  have  excited  a smile, 
or  have  awakened  serious  hopes,  is 
a question  on  which  the  reader  can 
speculate.  But  it  is  certain  that 
there  were  persons  in  this  country, 
and  in  the  neighboring  British 
Provinces,  who  had  long  hoped  for 
a reunion  of  the  American  States 
with  the  parent  country,  through 
this  or  some  other  “ mad  project.” 
Colonel  Humphreys,  (who  had  been 
one  of  Washington’s  aides,')  writing 
to  Hamilton,  from  New  Haven,  un- 
der date  of  September  16,  1787, 
says : “ The  quondam  Tories  have 
undoubtedly  conceived  hopes  of  a 
future  union  with  Great  Britain, 
from  the  inefficacy  of  our  govern- 
ment, and  the  tumults  which  pre- 
vailed during  the  last  winter.  I saw 


494 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


to  be  doubted  that  the  Constitution,  among  the  other 
mischiefs  which  it  averted,  saved  the  country  from  a 
desperate  attempt  to  introduce  a form  of  government 
which  must  have  been  crushed  beneath  commotions 
that  would  have  made  all  government,  for  a long  time 
at  least,  impracticable.  The  public  anxiety,  created  by 
the  reports  in  circulation,  had  reached  such  a point 


a letter,  written  at  that  period,  by  a 
clergyman  of  considerable  reputa- 
tion in  Nova  Scotia,  to  a person  of 
eminence  in  this  State,  stating  the 
impossibility  of  our  being  happy 
under  our  present  constitution,  and 
proposing  (now  we  could  think 
and  argue  calmly  on  all  the  con- 
sequences), that  the  efforts  of  the 
moderate,  the  virtuous,  and  the 
brave > should  be  exerted  to  effect 
a reunion  with  the  parent  state. 

It  seems,  by  a conversation 

I have  had  here,  that  the  ultimate 
practicability  of  introducing  the 
Bishop  of  Osnaburg  is  not  a novel 
idea  among  those  who  were  for- 
merly termed  Loyalists.  Ever  since 
the  peace  it  has  been  occasionally 
talked  of  and  wished  for.  Yester- 
day, where  I dined,  half  jest,  half 
earnest,  he  was  given  as  the  first 
toast.  I leave  you  now,  my  dear 
friend,  to  reflect  how  ripe  we  are 
for  the  most  mad  and  ruinous  pro- 
ject that  can  be  suggested,  especial- 
ly when,  in  addition  to  this  view, 
we  take  into  consideration  how 
thoroughly  the  patriotic  part  of  the 
community,  the  friends  of  an  ef- 
ficient government,  are  discour- 
aged with  the  present  system,  and 
irritated  at  the  popular  demagogues 


who  are  determined  to  keep  them- 
selves in  office,  at  the  risk  of  every- 
thing. Thence  apprehensions  are 
formed,  that,  though  the  measures 
proposed  by  the  Convention  may 
not  be  equal  to  the  wishes  of  the 
most  enlightened  and  virtuous,  yet 
that  they  will  be  too  high-toned  to 
be  adopted  by  our  popular  assem- 
blies. Should  that  happen,  our 
political  ship  will  be  left  afloat  on  a 
sea  of  chance,  without  a rudder  as 
well  as  without  a pilot.”  (Works 
of  Hamilton,  I.  443.)  In  a grave 
and  comprehensive  private  memo- 
randum, drawn  up  by  Hamilton 
soon  after  the  Constitution  ap- 
peared, in  which  he  summed  up 
the  probabilities  for  and  against 
its  adoption,  and  the  consequences 
of  its  rejection,  the  following  oc- 
curs, as  among  the  events  likely  to 
follow  such  rejection  : “ A re- 
union with  Great  Britain,  from 
universal  disgust  at  a state  of  com- 
motion, is  not  impossible,  though 
not  much  to  be  feared.  The  most 
plausible  shape  of  such  a business 
would  be,  the  establishment  of  a 
son  of  the  present  monarch  in  the  su- 
preme government  of  this  country, 
with  a family  compact.”  (Works, 
n.  419,  421.) 


Ch.  I.] 


FRIENDS  OF  THE  CONSTITUTION. 


495 


in  the  month  of  August,  — when  it  was  rumored 
that  the  Convention  had  recently  given  a higher 
tone  to  the  system  they  were  preparing,  — that  mem- 
bers found  it  necessary  to  answer  numerous  letters 
of  inquiry  from  persons  who  had  become  honestly 
alarmed.  “ Though  we  cannot  affirmatively  tell 
you,”  was  their  answer,  “ what  we  are  doing,  we  can 
negatively  tell  you  what  we  are  not  doing: — we 
never  once  thought  of  a king.”  1 

All  doubt  and  uncertainty  were  dispelled,  however, 
by  the  publication  of  the  Constitution  in  the  news- 
papers of  Philadelphia,  on  the  19th  of  September. 
It  was  at  once  copied  into  the  principal  journals  of 
all  the  States,  and  was  perhaps  as  much  read  by  the 
people  at  large  as  any  document  could  have  been  in 
the  condition  of  the  means  of  public  intelligence 
which  a very  imperfect  post-office  department  then 
afforded.  It  met  everywhere  with  warm  friends  and 
warm  opponents ; its  friends  and  its  opponents  being 
composed  of  various  classes  of  men,  found,  in  differ- 
ent proportions,  in  almost  all  of  the  States.  Those 
who  became  its  advocates  were,  first,  a large  body  of 
men,  who  recognized,  or  thought  they  recognized,  in 
it  the  admirable  system  which  it  in  fact  proved  to  be 
when  put  into  operation ; secondly,  those  who,  like 
most  of  the  statesmen  who  made  it,  believed  it  to  be 
the  best  attainable  government  that  could  be  adopted 
by  the  people  of  the  United  States,  overlooking  defects 
which  they  acknowledged,  or  trusting  to  the  power 
of  amendment  which  it  contained ; and,  thirdly,  the 

1 Pennsylvania  Journal,  August  22,  1787. 


496 


ADOPTION  OP  THE  CONSTITUTION.  [Book  Y. 


mercantile  and  manufacturing  classes,  who  regarded 
its  commercial  and  revenue  powers  with  great  fa- 
for.  Its  adversaries  wrere  those  who  had  always 
opposed  any  enlargement  of  the  federal  system ; 
those  whose  consequence^  as  politicians  would  be 
diminished  by  the  establishment  of  a government 
able  to  attract  into  its  service  the  highest  classes 
of  talent  and  character,  and  presenting  a service 
distinct  from  that  of  the  States ; those  wrho  con- 
scientiously believed  its  provisions  and  powers  dan- 
gerous to  the  rights  of  the  States  and  to  public 
liberty ; and,  finally,  those  wrho  were  opposed  to  any 
government,  whether  State  or  national  or  federal, 
that  would  have  vigor  and  energy  enough  to  protect 
the  rights  of  property,  to  prevent  schemes  of  plun- 
der in  the  form  of  paper  money,  and  to  bring  about 
the  discharge  of  public  and  private  debts.  The  dif- 
ferent opponents  of  the  Constitution  being  animated 
by  these  various  motives,  great  care  should  be  taken 
by  posterity,  in  estimating  the  conduct  of  individ- 
uals, not  to  confound  these  classes  with  each  other, 
although  they  were  often  united  in  action. 

As  the  Constitution  presented  itself  to  the  people 
in  the  light  of  a proposal  to  enlarge  and  reconstruct 
the  system  of  the  Federal  Union,  its  advocates  be- 
came known  as  the  “Federalists,”  and  its  adversa- 
ries as  the  “ Anti-Federalists.”  This  celebrated  des- 
ignation of  Federalist,  which  afterwards  became  so 
renowned  in  our  political  history  as  the  name  of  a 
party,  signified  at  first  nothing  more  than  was  im- 
plied in  the  title  of  the  essays  which  passed  under 


Ch.  I.] 


ORIGIN  OF  THE  FEDERALISTS. 


497 


that  name,  namely,  an  advocacy  of  the  Constitu- 
tion of  the  United  States.1 

Midway  between  the  active  friends  and  opponents 


1 The  history  of  the  term  “ Fed- 
eral,” or  “ Federalist,”  offers  a cu- 
rious illustration  of  the  capricious 
changes  of  sense  which  political 
designations  often  undergo,  within 
a short  period  of  time,  according 
to  the  accidental  circumstances 
which  give  them  their  application. 
During  the  discussions  of  the  Con- 
vention  which  framed  the  Constitu- 
tion of  the  United  States,  the  term 
federal  was  employed  in  its  truly 
philosophic  sense,  to  designate  the 
nature  of  the  government  estab- 
lished by  the  Articles  of  Confeder- 
ation, in  distinction  from  a national 
system,  that  would  be  formed  by 
the  introduction  of  the  plan  of 
having  the  States  represented  in 
the  Congress  in  proportion  to  the 
numbers  of  their  inhabitants.  But 
when  the  Constitution  was  before 
the  people  of  the  States  for  their 
adoption,  its  friends  and  advocates 
were  popularly  called  Federalists, 
because  they  favored  an  enlarge- 
ment of  the  Federal  government 
at  the  expense  of  some  part  of  the 
State  sovereignties,  and  its  oppo- 
nents were  called  the  Anti-Feder- 
alists. In  this  use,  the  former  term 
in  no  way  characterized  the  nature 
of  the  system  advocated,  but  merely 
designated  a supporter  of  the  Con- 
stitution. A few  years  later,  when 
the  first  parties  were  formed,  in  the 
first  term  of  Washington’s  Admin- 
istration, it  so  happened  that  the 
leading  men  who  gave  a distinct 
vol.  ii.  63 


character  to  the  development  which 
the  Constitution  then  received  had 
been  prominent  advocates  of  its 
adoption,  and  had  been  known 
therefore  as  Federalists,  as  had  al- 
so been  the  case  with  some  of  those 
who  separated  themselves  from  this 
body  of  persons  and  formed  what 
was  termed  the  Republican,  after- 
wards the  Democratic  party.  But 
the  prominent  supporters  of  the 
policy  which  originated  in  Wash- 
ington’s administration  continued 
to  be  called  Federalists,  and  the 
term  thus  came  to  denote  a partic- 
ular school  of  politics  under  the 
Constitution,  although  it  previously 
signified  merely  an  advocacy  of 
its  adoption.  Thus,  for  example, 
Hamilton,  in  1787,  was  no  Feder- 
alist, because  he  was  opposed  to  the 
continuance  of  a federal,  and  de- 
sired the  establishment  of  a nation- 
al government.  In  1788,  he  was 
a Federalist,  because  he  wished  the 
Constitution  to  be  adopted ; and 
he  afterwards  continued  to  be  a 
Federalist,  because  he  favored  a 
particular  policy  in  the  administra- 
tion of  the  government,  under  the 
Constitution.  It  was  in  this  latter 
sense  that  the  term  became  so  cel- 
ebrated in  ©ur  political  history. 
The  reader  will  observe  that  I use 
it,  of  course,  in  this  work,  only  in 
the  sense  attached  to  it  while  the 
Constitution  was  before  the  people 
of  the  States  for  adoption. 


498 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


of  the  Constitution  lay  that  great  and  somewhat  in- 
ert mass  of  the  people,  which,  in  all  free  countries, 
finally  decides  by  its  preponderance  every  seemingly 
doubtful  question  of  political  changes.  It  was  com- 
posed of  those  who  had  no  settled  convictions  or 
favorite  theories  respecting  the  best  form  of  a gen- 
eral government,  and  who  were  under  the  influence 
of  no  other  motive  than  a desire  for  some  system 
that  would  relieve  their  industry  from  the  oppres- 
sions under  which  it  had  long  labored,  and  would 
give  security,  peace,  and  dignity  to  their  country. 
Ardently  attached  to  the  principles  of  republican 
government  and  to  their  traditionary  maxims  of 
public  liberty,  and  generally  feeling  that  their  re- 
spective States  were  the  safest  depositaries  of  those 
principles  and  maxims,  this  portion  of  the  people 
of  the  United  States  were  likely  to  be  much  influ- 
enced by  the  arguments  against  the  Constitution 
founded  on  its  want  of  what  was  called  a Bill  of 
Bights,  on  its  omission  to  secure  a trial  by  jury  in 
civil  cases,  and  on  the  other  alleged  defects  which 
were  afterwards  corrected  by  the  first  ten  Amend- 
ments. But  they  had  great  confidence  in  the 
principal  framers  of  the  instrument,  an  unbounded 
reverence  for  Washington  and  Franklin,  and  a •will- 
ingness to  try  any  experiment  sanctioned  by  men  so 
illustrious  and  so  entirely  incapable  of  any  selfish  or 
unworthy  purpose.1  There  were,  however,  consider- 

1 A striking  proof  of  the  impor-  newspapers  of  Philadelphia  and 
tance  attached  by  the  people  to  the  New  York,  after  the  Constitution 
opinions  of  Washington  and  Frank-  appeared,  whether  those  distin- 
lin  may  be  found  in  a controversy  guished  persons  really  approved 
•carried  on  for  a short  time  in  the  what  they  had  signed. 


Ch.  L] 


ACTION  OP  THE  CONGRESS. 


499 


able  numbers  of  the  people,  in  the  more  remote  dis- 
tricts of  several  of  the  States,  who  had  a very  imper- 
fect acquaintance,  if  they  had  any,  with  the  details 
of  the  proposed  system,  at  the  time  when  their  leg- 
islatures were  called  upon  to  provide  for  the  assem- 
bling of  conventions ; for  we  are  not  to  suppose  that 
what  would  now  be  the  general  and  almost  instan- 
taneous knowledge  of  any  great  political  event  or 
topic,  could  have  taken  place  at  that  day  concerning 
the  proposed  Constitution  of  the  United  States.  Still 
it  was  quite  generally  understood  before  its  final  rat- 
ification in  the  States  where  its  adoption  was  post- 
poned to  the  following  year,  where  information  was 
most  wanted,  and  where  the  chief  struggles  occurred ; 
and  it  is  doubtless  correct  to  assert  that  its  adoption 
was  the  intelligent  choice  of  a majority  of  the  people 
of  each  State,  as  well  as  the  choice  of  their  delegates, 
when  their  conventions  successively  acted  upon  it. 

On  the  adjournment  of  the  Convention,  Madison, 
King,  and  Gorham,  who  held  seats  in  the  Congress 
of  the  Confederation,  hastened  to  the  city  of  New 
York,  where  that  body  was  then  sitting.  They 
found  eleven  States  represented.1  But  they  found 
also  that  an  effort  was  likely  to  be  made,  either  to 
arrest  the  Constitution  on  its  way  to  the  people  of 
the  States,  or  to  subject  it  to  alteration  before  it 
should  be  sent  to  the  legislatures.  It  was  received 
by  official  communication  from  the  Convention  in 
about  ten  days  after  that  assembly  was  dissolved. 
All  that  was  asked  of  the  Congress  was,  that  they 


1 All  but  Maryland  and  Rhode  Island. 


500 


ADOPTION  OF  THE  CONSTITUTION.  [Book  Y. 


should  transmit  it  to  their  constituent  legislatures 
for  their  action.  The  old  objection,  that  the  Con- 
gress could  with  propriety  participate  in  no  measure 
designed  to  change  the  form  of  a government  which 
they  were  appointed  to  administer,  having  been  an- 
swered, Richard  Henry  Lee  of  Virginia  proposed  to 
amend  the  instrument  by  inserting  a Bill  of  Rights, 
trial  by  jury  in  civil  cases,  and  other  provisions  in 
conformity  with  the  objections  which  had  been  made 
in  the  Convention  by  Mr.  Mason. 

To  the  address  and  skill  of  Mr.  Madison,  I think, 
the  defeat  of  this  attempt  must  be  attributed.  If  it 
had  succeeded,  the  Constitution  could  never  have 
been  adopted  by  the  necessary  number  of  States;  for 
the  recommendation  of  the  Convention  did  not  make 
the  action  of  the  State  legislatures  conditional  upon 
their  receiving  the  instrument  from  the  Congress; 
the  legislatures  would  have  been  at  liberty  to  send 
the  document  published  by  the  Convention  to  the 
assemblies  of  delegates  of  the  people,  without  add- 
ing provisions  that  might  have  been  added  by  the 
Congress ; some  of  them  would  have  done  so,  while 
others  would  have  followed  the  action  of  the  Con- 
gress, and  thus  there  would  have  been  in  fact  two 
Constitutions  before  the  people  of  the  States,  and 
their  acts  of  ratification  would  have  related  to  dis- 
similar instruments.  This  consideration  induced 
the  Congress,  by  a unanimous  vote  of  the  States 
present,  to  adopt  a resolution  which,  while  it  con- 
tained no  approval  of  the  Constitution,  abstained 
from  interfering  with  it  as  it  came  from  the  Conven- 


Ch.  I.] 


RECEPTION  IN  MASSACHUSETTS. 


501 


tion,  and  transmitted  it  to  the  State  legislatures, 
“ in  order  to  be  submitted-  to  a convention  of  dele- 
gates chosen  in  each  State  by  the  people  thereof,  in 
conformity  to  the  resolves  of  the  Convention  made 
and  provided  in  that  case.” 1 

In  Massachusetts,  the  Constitution  was  well  re- 
ceived, on  its  first  publication,  so  far  as  its  friends 
in  the  central  portion  of  the  Union  could  ascertain. 
Mr.  Gerry  was  a good  deal  censured  for  refusing  to 
sign  it,  and  the  public  voice,  in  Boston  and  its 
neighborhood,  appeared  to  be  strongly  in  its  favor. 
But  in  a very  short  time  three  parties  were  formed 
among  the  people  of  the  State,  in  such  proportions 
as  to  make  the  result  quite  uncertain.  The  com- 
mercial classes,  the  men  of  property,  the  clergy,  the 
members  of  the  legal  profession,  including  the  judg- 
es, the  officers  of  the  late  army,  and  most  of  the 
people  of  the  large  towns,  were  decidedly  in  favor 
of  the  Constitution.  This  party  amounted  to  three 
sevenths  of  the  people  of  the  State.  The  inhabi- 
tants of  the  district  of  Maine,  who  were  then  look- 
ing forward  to  the  formation  of  a new  State,  would 
be  likely  to  vote  for  the  new  Constitution,  or  to  op- 
pose it,  as  they  believed  it  would  facilitate  or  retard 
their  wishes ; and  this  party  numbered  two  sevenths. 
The  third  party  consisted  of  those  who  had  been 
concerned  in  the  late  insurrection  under  Shays,  and 
their  abettors;  the  majority  of  them  desiring  the 
annihilation  of  debts,  public  and  private,  and  believ- 
ing that  the  proposed  Constitution  would  strengthen 

1 Passed  September  28,  1787.  Journals,  XU.  149-166. 


502 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


all  the  rights  of  property.  Their  numbers  were  es- 
timated at  two  sevenths  of  the  people.1  It  was 
evident  that  a union  of  the  first  two  parties  would 
secure  the  ratification  of  the  instrument,  and  a union 
of  the  last  two  would  defeat  it.  Great  caution,  con- 
ciliation, and  good  temper  were,  therefore,  required, 
on  the  part  of  its  friends.  The  influence  of  Massa- 
chusetts on  Virginia,  on  New  York,  and  indeed  on 
all  the  States  that  were  likely  to  act  after  her,  would 
be  of  the  utmost  importance.  The  State  convention 
was  ordered  to  assemble  in  January. 

In  New  York,  as  elsewhere,  the  first  impressions 
were  in  favor  of  the  Constitution.  In  the  city,  and 
in  the  southern  counties  generally,  it  was  from  the 
first  highly  popular.  But  it  was  soon  apparent  that 
the  whole  official  influence  of  the  executive  govern- 
ment of  the  State  would  be  thrown  against  it.  There 
had  been  a strong  party  in  the  State,  ever  since  its 
refusal  to  bestow  on  the  Congress  the  powers  asked 
for  in  the  revenue  system  of  1783,  who  had  regarded 
the  Union  with  jealousy,  and  steadily  opposed  the 
surrender  to  it  of  any  further  powers.  Of  this  par- 
ty, the  Governor,  George  Clinton,  was  now  the  head; 
and  the  government  of  the  State,  which  embraced  a 
considerable  amount  of  what  is  termed  “ patronage,” 
was  in  their  hands.  Two  of  the  delegates  of  the 
State  to  the  national  Convention,  Yates  and  Lan- 
sing, had  retired  from  that  body  before  the  Consti- 
tution was  completed,  and  had  announced  their 

1 This  is  the  substance  of  a care-  to  General  Washington.  (Works 
fui  account  given  by  General  Knox  of  W ashington,  IX.  310,311.) 


Ch.  I.] 


RECEPTION  IN  NEW  YORK. 


503 


opposition  to  it  in  a letter  to  the  Governor,  which, 
from  its  tone  and  the  character  of  its  objections,  was 
likely  to  produce  a strong  impression  on  the  public 
mind.  It  became  evident  that  the  Constitution 
could  be  carried  in  the  State  of  New  York  in  no 
other  way  than  by  a thorough  discussion  of  its  mer- 
its, — such  a discussion  as  would  cause  it  to  be  un- 
derstood by  the  people,  and  would  convince  them  that 
its  adoption  was  demanded  by  their  interests.  For 
this  purpose,  Hamilton,  Madison,  and  Jay,  under 
the  common  signature  of  Publius,  commenced  the 
publication  of  the  series  of  essays  which  became 
known  as  The  Federalist.  The  first  number  was 
issued  in  the  latter  part  of  October. 

In  January,  the  Governor  presented  the  official 
communication  of  the  instrument  from  the  Congress 
to  the  legislature,  with  the  cold  remark,  that,  from 
the  nature  of  his  official  position,  it  would  be  im- 
proper for  him  to  have  any  other  agency  in  the  busi- 
ness than  that  of  laying  the  papers  before  them  for 
their  information.  Neither  he  nor  his  party,  how- 
ever, contented  themselves  with  this  abstinence. 
After  a severe  struggle,  resolutions  ordering  a State 
convention  to  be  elected  were  passed  by  the  bare  ma- 
jorities of  three  in  the  Senate  and  two  in  the  House, 
on  the  first  day  of  February,  1788.  The  elections  were 
held  in  April;  and  when  the  result  became  known, 
in  the  latter  part  of  May,  it  appeared  that  the  Anti- 
Federalists  had  elected  two  thirds  of  the  members  of 
the  Convention,  and  that  probably  four  sevenths  of 
the  people  of  the  State  were  unfriendly  to  the  Con- 


504 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


stitution.  Backed  by  this  large  majority,  the  leaders 
of  the  Anti-Federal  party  intended  to  meet  in  con- 
vention at  the  appointed  time,  in  June,  and  then  to 
adjourn  until  the  spring  or  summer  of  1789.  Their 
argument  for  this  course  was,  that,  if  the  Constitu- 
tion had  been  adopted  in  the  course  of  a twelve- 
month  by  nine  other  States,  New  York  would  have 
an  opportunity  to  witness  its  operation  and  to  act 
according  to  circumstances.  They  would  thus  avoid 
an  immediate  rejection,  — a step  which  might  lead 
the  Federalists  to  seek  a separation  of  the  southern 
from  the  northern  part  of  the  State,  for  the  purpose 
of  forming  a new  State.  On  the  other  hand,  the 
Federalists  rested  their  hopes  upon  what  they  could 
do  to  enlighten  the  public  at  large,  and  upon  the 
effect  on  their  opponents  of  the  action  of  other 
States,  especially  of  Virginia,  whose  convention  was 
to  meet  at  nearly  the  same  time.  The  Convention 
of  New  York  assembled  at  Poughkeepsie,1  on  the 
17th  of  June,  1788. 

However  strong  the  opposition  in  other  States,  it 
was  to  be  in  Virginia  far  more  formidable,  from  the 
abilities  and  influence  of  its  leaders,  from  the  nature 
of  their  objections,  and  from  the  peculiar  character 
of  the  State.  Possessed  of  a large  number  of  men 
justly  entitled  to  be  regarded  then  and  always  as 
statesmen,  although  many  of  them  were  prone  to 
great  refinements  in  matters  of  government;  filled 
with  the  spirit  of  republican  freedom,  although  its 

1 A town  on  the  Hudson  River,  seventy-five  miles  north  of  the  city  of 
New  York. 


Ch.  I.]  RECEPTION  IN  VIRGINIA.  505 

polity  and  manners  were  marked  by  several  aristo- 
cratic features ; having,  on  the  one  hand,  but  few 
among  its  citizens  interested  in  commerce,  and  still 
fewer,  on  the  other  hand,  of  those  levelling  and  licen- 
tious classes  which  elsewhere  sought  to  overturn  or 
control  the  interests  of  property ; ever  ready  to  lead 
in  what  it  regarded  as  patriotic  and  demanded  by 
the  interests  of  the  Union,  but  jealous  of  its  own 
dignity  and  of  the  rights  of  its  sovereignty ; — the 
State  of  Virginia  would  certainly  subject  the  Con- 
stitution to  as  severe  an  ordeal  as  it  could  undergo 
anywhere,  and  would  elicit  in  the  discussion  all  the 
good  or  the  evil  that  could  be  discovered  in  the 
examination  of  a system  before  it  had  been  practi- 
cally tried.  The  State  was  to  feel,  it  is  true,  the 
almost  overshadowing  influence  of  Washington,  in 
favor  of  the  new  system,  exerted,  not  by  personal 
participation  in  its  proceedings,  but  in  a manner 
which  could  leave  no  doubt  respecting  his  opinion. 
But  it  was  also  to  feel  the  strenuous  opposition  of 
Patrick  Henry,  that  great  natural  orator  of  the  Rev- 
olution, whose  influence  over  popular  assemblies  was 
enormous,  and  who  added  acuteness,  subtilty,  and 
logic  to  the  fierce  sincerity  of  his  unstudied  ha- 
rangues, although  his  knowledge  was  meagre  and 
his  range  of  thought  circumscribed ; and  the  not  less 
strenuous  or  effective  opposition  of  George  Mason, 
who  had  little  of  the  eloquence  and  passion  of  his 
renowned  compatriot,  but  who  was  one  of  the  most 
profound  and  able  of  all  the  American  statesmen  op- 
posed to  the  Constitution,  while  he  was  inferior  in 

64 


VOL.  II. 


506  ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 

general  powers  and  resources  to  not  more  than  two 
or  three  of  those  who  framed  or  advocated  it.  Rich- 
ard Henry  Lee,  William  Grayson,  Benjamin  Harri- 
son, John  Tyler,  and  others  of  less  note,  were  united 
with  Henry  and  Mason  in  opposing  the  Constitu- 
tion. Its  leading  advocates  were  to  be  Madison, 
Marshall,  the  future  Chief  Justice  of  the  United 
States,  George  Nicholas,  and  the  Chancellor  Pendle- 
ton. The  Governor,  Edmund  Randolph,  occupied 
for  a time  a middle  position  between  its  friends  and 
its  opponents,  but  finally  gave  to  it  his  support,  from 
motives  which  I have  elsewhere  described  as  emi- 
nently honorable  and  patriotic. 

One  of  the  most  distinguished  of  the  public  men 
of  Virginia  had  been  absent  in  the  diplomatic  ser- 
vice of  the  country  for  three  years.  His  eminent 
abilities  and  public  services,  his  national  reputation, 
and  the  influence  of  his  name,  naturally  made  both 
parties  anxious  to  claim  the  authority  of  Jefferson, 
and  he  was  at  once  furnished  with  a copy  of  the 
Constitution  as  soon  as  it  appeared.  In  the  heats 
of  subsequent  political  conflicts  he  has  been  often 
charged  by  his  opponents  with  a general  hostility  to 
the  Constitution.  The  truth  is,  that  Mr.  Jefferson’s 
opinions  on  the  subject  of  government,  and  of  what 
was  desirable  and  expedient  to  be  done  in  this 
country,  united  with  the  effect  of  his  long  absence 
from  home,1  did  lead  him,  at  first,  to  think  and  to 
say  that  the  Constitution  had  defects  which,  if  not 
corrected,  would  destroy  the  liberties  of  America. 


1 lie  went  abroad  in  the  summer  of  1784. 


Ch.  I.J 


JEFFERSON’S  OPINIONS. 


507 


He  was  by  far  the  most  democratic,  in  the  tendency 
of  his  opinions,  of  all  the  principal  American  states- 
men of  that  age.  He  was,  according  to  his  own 
avowal,  no  friend  to  an  energetic  government  any- 
where. He  carried  abroad  the  opinion  that  the 
Confederation  could  be  adapted,  with  a few  changes, 
to  all  the  wants  of  the  Union ; and  this  opinion  he 
continued  to  retain,  because  the  events  which  had 
taken  place  here  during  his  absence  did  not  produce 
upon  his  mind  the  effect  which  they  produced  upon 
the  great  majority  of  public  men  who  remained  in 
the  midst  of  them.  He  freely  declared  to  more  than 
one  of  his  correspondents  in  Virginia,  at  this  time, 
that  such  disorders  as  had  been  witnessed  in  Massa- 
chusetts were  necessary  to  public  liberty,  and  that 
the  national  Convention  had  been  too  much  in- 
fluenced by  them,  in  preparing  the  Constitution. 
He  held  that  the  natural  progress  of  things  is  for 
liberty  to  lose  and  for  government  to  gain  ground ; 
and  that  no  government  should  be  organized  with- 
out those  express  and  positive  restraints  which  will 
jealously  guard  the  liberties  of  the  people,  even  if 
those  liberties  should  periodically  break  into  licen- 
tiousness. One  of  his  favorite  maxims  of  govern- 
ment was  “ rotation  in  office  ” ; and  he  thought  the 
government  of  the  Union  should  have  cognizance 
only  of  matters  involved  in  the  relations  of  the  peo- 
ple of  each  State  to  foreign  countries,  or  to  the  peo- 
ple of  the  other  States,  and  that  each  State  should 
retain  the  exclusive  control  of  all  its  internal  and 
domestic  concerns,  and  especially  the  power  of  direct 
taxation. 


508 


ADOPTION  OP  THE  CONSTITUTION.  [Book  Y. 


Hence  it  is  not  surprising  that,  when  Mr.  Jeffer- 
son received  at  Paris,  early  in  November,  a copy  of 
the  Constitution,  and  when  he  found  in  it  no  express 
declarations  insuring  the  freedom  of  religion,  free- 
dom of  the  press,  and  freedom  of  the  person  under 
the  uninterrupted  protection  of  the  habeas  corpus , 
and  no  trial  by  jury  in  civil  cases,  and  found  also 
that  the  President  would  be  re-eligible,  and  that  the 
government  would  have  the  power  of  direct  taxation, 
his  anxiety  should  have  been  excited.  It  is  a mis- 
take, however,  to  suppose  that  he  counselled  a direct 
rejection  of  the  instrument  by  the  people  of  Virginia. 
His  first  suggestion  was,  that  the  nine  States  which 
should  first  act  upon  it  should  adopt  it,  uncondition- 
ally, and  that  the  four  remaining  States  should  ac- 
cept it  only  on  the  previous  condition  that  certain 
amendments  should  be  made.  This  plan  of  his  be- 
came known  in  Virginia  in  the  course  of  the  winter 
of  1787-88,  and  it  gave  the  Anti-Federalists  what 
they  considered  a warrant  for  using  his  authority  on 
their  side.  But  before  the  following  spring,  when 
he  had  had  an  opportunity  to  see  the  course  pur- 
sued by  Massachusetts,  he  changed  his  opinion,  and 
authorized  his  friends  to  say  that  he  regarded  an  un- 
conditional acceptance  by  each  State,  and  subsequent 
amendments,  in  the  mode  provided  by  the  Constitu- 
tion, as  the  only  rational  plan.1  He  also  abandoned 
the  opinion  that  the  general  government  ought  not 

1 Compare  Mr.  Jefferson’s  auto-  umes  of  his  collected  works  (edi- 
biography,  and  his  correspondence,  tion  of  1853),  and  the  letters  of 
in  the  first,  second,  and  third  vol-  Mr.  Madison. 


Ch.  I.] 


MASON  AND  HENRY. 


509 


to  have  the  power  of  direct  taxation ; but  he  never 
receded  from  his  objections  founded  on  the  want  of 
a bill  of  rights,  and  of  trial  by  jury,  and  on  the 
re-eligibility  of  the  President. 

Immediately  after  his  return  to  Mount  Vernon 
from  the  national  Convention,  Washington  sent 
copies  of  the  Constitution  to  Patrick  Henry,  Mason, 
Harrison,  and  other  leading  persons  whose  oppo- 
sition he  anticipated,  with  a temperate  but  firm  ex- 
pression of  his  own  opinion.  The  replies  of  these 
gentlemen  furnished  him  with  the  grounds  of  their 
objections,  and  at  the  same  time  relieved  him,  as  to 
all  of  them  but  Henry,  from  the  apprehension  that 
they  might  resist  the  calling  of  a State  convention. 
Mason  and  Henry  were  both  members  of  the  legis- 
lature. The  former  was  expressly  instructed  by  his 
constituents  of  Alexandria  county 1 to  vote  for  a sub- 
mission of  the  Constitution  to  the  people  of  the 
State  in  convention ; — a vote  which  he  would  prob- 
ably have  given  without  instruction,  as  he  declared 
to  General  Washington  that  he  should  use  all  his 
influence  for  this  purpose.  Mr.  Henry  was  not  in- 


1 In  the  newspapers  of  the  time 
there  is  to  be  found  a story  that 
Mr.  Mason  was  very  roughly  re- 
ceived on  his  arrival  at  the  city  of 
Alexandria,  after  the  adjournment 
of  the  national  Convention,  on  ac- 
count of  his  refusal  to  sign  the 
Constitution.  The  occurrence  is 
not  alluded  to  in  Washington’s 
correspondence,  although  he  close- 
ly observed  Mr.  Mason’s  move- 
ments, and  regarded  them  with  ev- 


ident anxiety.  The  story  is  told 
in  the  Pennsylvania  Journal  of 
October  17,  1787,  — a strong  Fed- 
eral paper.  I know  of  no  other 
confirmation  of  it  than  the  fact 
that  the  people  of  Alexandria  em- 
braced the  Constitution  from  the 
first  with  “ enthusiastic  warmth,” 
according  to  the  account  given 
by  General  Washington  to  one  of 
his  correspondents.  (Works,  IX. 
272.) 


510 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


structed,  and  the  friends  of  the  Constitution  expected 
his  resistance.  The  legislature  assembled  in  Octo- 
ber, and  on  the  first  day  of  the  session,  in  a very 
full  House,  Henry  declared,  to  the  surprise  of  every- 
body, that  the  proposed  Constitution  must  go  to  a 
popular  convention.  The  elections  for  such  a body 
were  ordered  to  be  held  in  March  and  April  of  the 
following  spring.  When  they  came  on,  the  news 
that  the  convention  of  New  Hampshire  had  post- 
poned their  action  was  employed  by  the  Anti-Fed- 
eralists, who  insisted  that  this  step  had  been  taken 
in  deference  to  Virginia;  although  it  was  in  fact 
taken  merely  in  order  that  the  delegates  of  New 
Hampshire  might  get  their  previous  instructions 
against  the  Constitution  removed  by  their  constitu- 
ents. The  pride  of  Virginia  was  touched  by  this 
electioneering  expedient,  and  the  result  was  that  the 
parties  in  the  State  convention  were  nearly  balanced, 
the  Federalists  however  having,  as  they  supposed, 
a majority.1  The  convention  was  to  assemble  on  the 
2d  of  June,  1788. 

In  the  legislature  of  South  Carolina  the  Constitu- 
tion was  debated,  with  great  earnestness,  for  three 
days,  before  it  was  decided  to  send  it  to  a popular 
convention.  This  was  owing  to  the  great  persistency 
of  Rawlins  Lowndes,  who  carried  on  the  discussion 
in  opposition  to  the  Constitution,  almost  single- 
handed  and  with  great  ability,  against  the  two  Pinck- 
neys, Pierce  Butler,  John  and  Edward  Rutledge, 
John  Julius  Pringle,  Robert  Barnwell,  Dr.  David 

l Washington’s  Works,  IX.  266,  267,  273,  340-342,  345,  346. 


Ch.  I.] 


RECEPTION  IN  SOUTH  CAROLINA. 


511 


Ramsay,  and  many  other  gentlemen.  At  length,  on 
the  19th  of  January,  a resolution  was  passed,  direct- 
ing a convention  of  the  people  to  assemble  on  the 
12th  of  May.  The  debate  in  the  legislature  had 
tended  to  diffuse  information  respecting  the  system, 
but  it  had  also  produced  a formidable  minority 
throughout  the  State.  Mr.  Lowndes  had  employed, 
with  a good  deal  of  skill,  the  local  arguments  which 
would  be  most  likely  to  form  the  objections  of  a 
citizen  of  South  Carolina.  He  inveighed  against 
the  regulation  of  ' commerce,  the  power  over  the 
slave-trade  that  was  to  belong  to  Congress  at  the 
end  of  twenty  years,  and  the  preponderance  which 
he  contended  would  be  given  to  the  Eastern  States 
by  the  system  of  representation  in  Congress ; and 
although  he  was  ably  answered  on  all  points,  the 
effect  of  the  discussion  was  such,  that  a large  minor- 
ity was  returned  to  the  Convention  having  a strong 
hostility  to  the  proposed  system.1 

The  legislature  of  Maryland  assembled  in  Decem- 
ber, and  directed  the  delegates  who  had  represented 
the  State  in  the  national  Convention  to  attend  and 
give  an  account  of  the  proceedings  of  that  assembly. 


1 This  debate  of  three  days  in  the 
South  Carolina  legislature  was  one 
of  the  most  able  of  all  the  discussions 
attending  the  ratification  of  the 
Constitution.  Mr.  Lowndes  was 
overmatched  by  his  antagonists, 
but  he  resisted  with  great  spirit,  and 
finally  closed  with  the  declaration 
that  he  saw  dangers  in  the  pro- 
posed government  so  great,  that  he 
could  wish,  when  dead,  for  no 


other  epitaph  than  this : “ Here 
lies  the  man  that  opposed  the  Con- 
stitution, because  it  was  ruinous  to 
the  liberty  of  America.”  He  lived 
to  find  his  desired  epitaph  a false 
prophecy.  He  was  the  father  of 
the  late  William  Lowndes,  who 
represented  the  State  of  South 
Carolina  in  Congress,  with  so  much 
honor  and  distinction,  during  the 
administration  of  Mr.  Madison. 


512 


ADOPTION  OF  THE  CONSTITUTION.  [Book  Y. 


It  was  in  compliance  with  this  direction  that  Luther 
Martin  laid  before  the  legislature  that  celebrated 
communication  which  embodied  not  only  a very 
clear  statement  of  the  mode  in  which  the  principal 
compromises  of  the  Constitution  were  framed,  as 
seen  from  the  point  of  view  occupied  by  one  who 
resisted  them  at  every  step,  but  also  an  exceed- 
ingly able  argument  against  the  fundamental  prin- 
ciple of  the  proposed  government.  It  was  a paper, 
too,  marked  throughout  with  an  earnestness  almost 
amounting  to  fanaticism.  Repelling,  with  natural 
indignation  and  dignity,  the  imputation  that  he  was 
influenced  by  a State  office  which  he  then  held,  he 
referred  to  the  numerous  honors  and  emoluments 
which  the  Constitution  of  the  United  States  would 
create,  and  suggested  — what  his  abilities  and  rep- 
utation well  justified  — that  his  chance  of  obtain- 
ing a share  of  them  was  as  good  as  most  men’s. 
“ But  this,”  was  his  solemn  conclusion,  “ I can  say 
with  truth,  — that  so  far  was  I from  being  influenced 
in  my  conduct  by  interest,  or  the  consideration  of 
office,  that  I would  cheerfully  resign  the  appoint- 
ment I now  hold ; I would  bind  myself  never  to 
accept  another,  either  under  the  general  government 
or  that  of  my  own  State ; I would  do  more,  sir ; — 
so  destructive  do  I consider  the  present  system  to 
the  happiness  of  my  country,  I would  cheerfully 
sacrifice  that  share  of  property  with  which  Heaven 
has  blessed  a life  of  industry ; I would  reduce  my- 
self to  indigence  and  poverty;  and  those  who  are 
dearer  to  me  than  my  own  existence,  I would  in- 


Ch.  I.] 


LUTHER  MARTIN. 


513 


trust  to  the  care  and  protection  of  that  Providence 
who  hath  so  kindly  protected  myself,  — - if  on  those 
terms  only  I could  procure  my  country  to  reject 
those  chains  which  are  forged  for  it.” 

Such  a strength  of  conviction  as  this,  on  the  part 
of  a man  of  high  talent,  was  well  calculated  to  pro- 
duce an  effect.  No  document  that  appeared  any- 
where, against  the  Constitution,  was  better  adapted 
to  rouse  the  jealousy,  to  confirm  the  doubts,  or  to 
decide  the  opinions,  of  a certain  class  of  minds.  But 
it  was  an  argument  which  reduced  the  whole  ques- 
tion substantially  to  the  issue,  whether  the  principle 
of  the  Union  could  safely  be  changed  from  that  of 
a federal  league,  with  an  equality  of  representation 
and  power  as  between  the  States,  to  a system  of 
national  representation  in  a legislative  body  having 
cognizance  of  certain  national  interests,  in  one  branch 
of  which  the  people  inhabiting  the  respective  States 
should  have  power  in  proportion  to  their  numbers.1 
This  was  a question  on  which  men  would  naturally 
and  honestly  differ ; but  it  was  a question  which  a 
majority  of  reflecting  men,  in  almost  every  State, 
were  likely,  after  due  inquiry,  to  decide  against  the 
views  of  Mr.  Martin,  because  it  was  clear  that  the 
Confederation  had  failed,  and  had  failed  chiefly  by 
reason  of  the  peculiar  and  characteristic  nature  of 
its  representative  system,  and  because  the  represent- 

1 Mr.  Martin’s  objections  ex-  its  system  of  representation,  which 
tended  to  many  of  the  details  of  he  predicted  would  destroy  the 
the  Constitution,  but  his  great  ar-  State  governments, 
gument  was  that  directed  against 

von.  II.  65 


514 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


ative  system  proposed  in  the  Constitution  was  the 
only  one  that  could  be  agreed  upon  as  the  alterna- 
tive. Mr.  Martin’s  objections,  however,  like  those 
of  other  distinguished  men  who  took  the  same  side 
in  other  States,  were  of  a nature  to  form  the  creed 
of  an  earnest,  conscientious,  and  active  minority. 
They  had  this  effect  in  the  State  of  Maryland.  The 
legislature  ordered  a State  convention,  to  consider 
the  proposed  Constitution,  and  directed  it  to  meet 
on  the  21st  of  April,  1788. 

The  convention  of  New  Hampshire  was  to  assem- 
ble in  February.  A large  portion  of  the  State  lay 
remote  from  the  channels  of  intelligence,  and  a con- 
siderable part  of  the  people  in  the  interior  had  not 
seen  the  Constitution,  when  they  were  called  upon 
to  elect  their  delegates.  The  population,  outside  of 
two  or  three  principal  places,  was  a rural  one,  thinly 
scattered  over  townships  of  large  territorial  extent, 
lying  among  the  hills  of  a broken  and  rugged  coun- 
try, extending  northerly  from  the  narrow  strip  of 
sea-coast  towards  the  frontier  of  Canada.  It  was 
easy  for  the  opposition  to  persuade  such  a people 
that  a scheme  of  government  had  been  prepared 
which  they  ought  to  reject ; and  the  consequence 
of  their  efforts  was  that  the  State  convention  assem- 
bled, probably  with  a majority,  certainly  with  a 
strong  minority,  of  its  members  bound  by  positive 
instructions  to  vote  against  the  Constitution  which 
they  were  to  consider. 

I have  thus,  in  anticipation  of  the  strict  order  of 
events,  given  a general  account  of  the  position  of 


Ch.  I.J 


GENERAL  ASPECTS. 


515 


this  great  question  in  six  of  the  States,  down  to  the 
time  of  the  meeting  of  their  respective  conventions, 
because  when  the  session  of  the  convention  of  Mas- 
sachusetts commenced,  in  January,  1788,  the  peo- 
ple of  the  five  States  of  Delaware,  Pennsylvania, 
New  Jersey,  Georgia,  and  Connecticut  had  succes- 
sively ratified  the  Constitution  without  proposing 
any  amendments,  and  because  the  action  of  the  oth- 
ers, extending  through  the  six  following  months, 
embraced  the  real  crisis  to  which  the  Constitution 
was  subjected,  and  developed  what  were  thereafter 
to  be  considered  as  its  important  defects,  according 
to  the  view  of  a majority  of  the  States,  and  probably 
also  of  a majority  of  the  people  of  all  the  States. 
For  although  the  people  of  Delaware,  Pennsylvania, 
New  Jersey,  Georgia,  and  Connecticut  ratified  the 
Constitution  without  insisting  on  previous  or  sub- 
sequent amendments,  it  is  certain  that  some  of  the 
same  topics  were  the  causes  of  anxiety  and  objection 
in  those  States,  which  occasioned  so  much  difficulty, 
and  became  the  grounds  of  special  action,  in  the  re- 
maining States. 

In  coming,  however,  to  the  more  particular  descrip- 
tion of  the  resistance  which  the  Constitution  encoun- 
tered, it  will  be  necessary  to  discriminate  between  the 
opposition  that  was  made  to  the  general  plan  of  the 
government,  or  to  the  particular  features  of  it  which 
it  was  proposed  to  create,  and  that  which  was  founded 
on  its  omission  to  provide  for  certain  things  that  were 
deemed  essential.  Of  what  may  be  called  the  posi- 
tive objections  to  the  Constitution,  it  may  be  said, 


516 


ADOPTION  OF  THE  CONSTITUTION.  [Book  Y. 


in  general,  that,  however  fruitful  of  debate,  or  decla- 
mation, or  serious  and  important  doubt,  might  be 
the  question  whether  such  a government  as  had 
been  framed  by  the  national  Convention  should  be 
substituted  for  the  Confederation,  the  opposition 
were  not  confined  to  this  question,  as  the  means  of 
persuading  the  people  that  the  proposed  system 
ought  to  be  rejected.  One  of  the  most  deeply  inter- 
ested of  the  men  who  were  watching  the  currents  of 
public  opinion  with  extreme  solicitude,  observed  “ a 
strong  belief  in  the  people  at  large  of  the  insufficien- 
cy of  the  Confederation  to  preserve  the  existence  of 
the  Union,  and  of  the  necessity  of  the  Union  to  their 
safety  and  prosperity;  of  course,  a strong  desire  of 
a change,  and  a predisposition  to  receive  well  the 
propositions  of  the  Convention.”1  But  while  the 
Constitution  came  before  the  people  with  this  con- 
viction and  this  predisposition  in  its  favor,  yet  when 
its  opponents,  in  addition  to  their  positive  objections 
to  what  it  did  contain,  could  point  to  what  it  did 
not  embrace,  and  could  say  that  it  proposed  to  estab- 
lish a government  of  great  power,  without  providing 
for  rights  of  primary  importance,  and  without  any 
declaration  of  the  cardinal  maxims  of  liberty  which 
the  people  had  from  the  first  been  accustomed  to  in- 
corporate with  their  State  constitutions ; and  while* 
the  local  interests,  the  sectional  feelings,  and  the  sep- 
arate policy,  real  or  supposed,  of  different  States,  fur- 
nished such  a variety  of  means  for  defeating  its  adop- 
tion by  the  necessary  number  of  nine  States ; — we 

1 Hamilton,  Works,  II.  419,  420. 


Ch.  I.]  UNCERTAINTY  OF  THE  RESULT.  517 

may  not  wonder  that  its  friends  should  have  been 
doubtful  of  the  issue.  “ It  is  almost  arrogance,” 
said  the  same  anxious  observer,  “ in  so  complicated 
a subject,  depending  so  entirely  upon  the  incalcula- 
ble fluctuations  of  the  human  passions,  to  attempt 
even  a conjecture  about  the  result.”  1 


1 Hamilton,  Works,  II.  421. 


CHAPTER  II. 

Ratifications  of  Delaware,  Pennsylvania,  New  Jersey, 
Georgia,  and  Connecticut,  without  Objection.  — Close  of 
the  Year  1787.  — Beginning  of  the  Year  1788.  — Ratifi- 
cation of  Massachusetts,  the  sixth  State,  with  Proposi- 
tions of  Amendment.  — Ratification  of  Maryland,  with- 
out Objection.  — South  Carolina,  the  eighth  State,  adopts, 

AND  PROPOSES  AMENDMENTS. 


The  first  State  that  ratified  the  Constitution,  al- 
though its  convention  was  not  the  first  to  assemble, 
was  Delaware.  It  was  a small,  compact  community, 
with  the  northerly  portion  of  its  territory  lying  near 
the  city  of  Philadelphia,  with  which  its  people  had 
constant  and  extensive  intercourse.  Its  public  men 
were  intelligent  and  patriotic.  In  the  national  Con- 
vention it  had  contended  with  great  spirit  for  the 
interests  of  the  smaller  States,  and  its  people  now 
had  the  sagacity  and  good  sense  to  perceive  that 
they  had  gained  every  reasonable  security  for  their 
peculiar  rights.  The  public  press  of  Philadelphia 
friendly  to  the  Constitution  furnished  the  means  of 
understanding  its  merits,  and  the  discussions  in  the 
convention  of  Pennsylvania,  which  assembled  before 
that  of  Delaware,  threw  a flood  of  light  over  the 
whole  subject,  which  the  people  of  Delaware  did  not 


Ch.  II.] 


PENNSYLVANIA. 


519 


fail  to  regard.  Their  delegates  unanimously  rati- 
fied and  adopted  the  Constitution  on  the  7th  of  De- 
cember. 

The  convention  of  Pennsylvania  met,  before  that 
of  any  of  the  other  States,  at  Philadelphia,  on  the 
20th  of  November.  It  was  the  second  State  in  the 
Union  in  population.  Its  chief  city  was  perhaps  the 
first  in  the  Union  in  refinement  and  wealth,  and  had 
often  been  the  scene  of  great  political  events  of  the 
utmost  interest  and  importance  to  the  whole  coun- 
try. There  had  sat,  eleven  years  before,  that  illus- 
trious Congress  of  deputies  from  the  thirteen  Colo- 
nies, who  had  declared  the  independence  of  America, 
had  made  Washington  commander-in-chief  of  her 
armies,  and  had  given  her  struggle  for  freedom  a 
name  throughout  the  world.  There,  the  Revolution- 
ary Congress  had  continued,  with  a short  interrup- 
tion, to  direct  the  operations  of  the  Avar.  There,  the 
alliance  Avith  France  Avas  ratified,  in  1778.  There, 
the  Articles  of  Confederation  were  finally  carried 
into  full  effect,  in  1781.  There,  Avithin  six  months 
afterwards,  the  Congress  received  intelligence  of 
the  surrender  of  Cormvallis,  and  walked  in  proces- 
sion to  one  of  the  churches  of  the  city,  to  return 
thanks  to  God  for  a victory  which  in  effect  ter- 
minated the  Avar.  There,  the  instructions  for  the 
treaty  of  peace  were  given,  in  1782,  and  there  the 
Constitution  of  the  United  States  had  been  recently 
framed.  For  more  than  thirteen  years,  since  the 
commencement  of  the  Revolution,  and  Avith  only  oc- 
casional intervals,  the  people  of  Philadelphia  had 


520 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


been  accustomed  to  the  presence  of  the  most  emi- 
nent statesmen  of  the  country,  and  had  learned, 
through  the  influences  which  had  gone  forth  from 
their  city,  to  embrace  in  their  contemplation  the 
interests  of  the  Union. 

They  placed  in  the  State  convention,  that  was  to 
consider  the  proposed  Constitution  of  the  United 
States,  one  of  the  wisest  and  ablest  of  its  framers,  — 
James  Wilson.  The  modesty  of  his  subsequent  ca- 
reer,1 and  the  comparatively  little  attention  that  has 
been  bestowed  by  succeeding  generations  upon  the 
personal  exertions  that  were  made  in  framing  and 
establishing  the  Constitution,  must  be  regarded  as 
the  causes  that  have  made  his  reputation,  at  this 
day,  less  extensive  and  general  than  his  abilities  and 
usefulness  might  have  led  his  contemporaries  to  ex- 
pect that  it  would  be.  Yet  the  services  which  he 
rendered  to  the  country,  first  in  assisting  in  the 
preparation  of  the  Constitution,  and  afterwards  in 
securing  its  adoption  by  the  State  of  Pennsylvania, 
should  place  his  name  high  upon  the  list  of  its  ben- 
efactors. He  had  not  the  political  genius  which 
gave  Hamilton  such  a complete  mastery  over  the 
most  complex  subjects  of  government,  and  which 
enabled  him,  when  the  Constitution  had  been  adopt- 
ed, to  give  it  a development  in  practice  that  made 
it  even  more  successful  than  its  theory  alone  could 
have  allowed  any  one  to  regard  as  probable;  nor  had 
he  the  talent  of  Madison  for  debate  and  for  constitu- 
tional analysis ; but  in  the  comprehensiveness  of  his 
1 See  an  account  of  him,  ante,  Vol.  I.  Book  HI.  Chap.  XI Y. 


Ch.  II.] 


JAMES  WILSON. 


521 


views,  and  in  his  perception  of  the  necessities  of 
the  country,  he  was  not  their  inferior,  and  he  was 
throughout  one  of  their  most  efficient  and  best  in- 
fo lined  coadjutors. 

He  had  to  encounter,  in  the  convention  of  the 
State,  a body  of  men,  a majority  of  whom  were  not 
unfriendly  to  the  Constitution,  but  among  whom 
there  was  a minority  very  hard  to  be  conciliated.  In 
the  counties  which  lay  west  of  the  Susquehanna,  — 
the  same  region  which  afterwards,  in  Washington’s 
administration,  became  the  scene  of  an  insurrection 
against  the  authority  of  the  general  government,  — 
there  was  a rancorous,  active,  and  determined  oppo- 
sition. Mr.  Wilson,  being  the  only  member  of  the 
State  convention  who  had  taken  part  in  the  framing 
of  the  Constitution,  was  obliged  to  take  the  lead  in 
explaining  and  defending  it.  His  qualifications  for 
this  task  were  ample.  He  had  been  a very  impor- 
tant and  useful  member  of  the  national  Convention ; 
he  had  read  every  publication  of  importance,  on  both 
sides  of  the  question,  that  had  appeared  since  the 
Constitution  was  published,  and  his  legal  and  his- 
torical knowledge  was  extensive  and  accurate.  No 
man  succeeded  better  than  he  did,  in  his  arguments 
on  that  occasion,  in  combating  the  theory  that  a 
State  government  possessed  the  whole  political  sov- 
ereignty of  the  people  of  the  State.  However  true 
it  might  be,  he  said,  in  England,  that  the  Parlia- 
ment possesses  supreme  and  absolute  power,  and 
can  make  the  constitution  what  it  pleases,  in  Amer- 
ica it  has  been  incontrovertible  since  the  Revolu- 


VOL.  II. 


66 


522 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


tion,  that  the  supreme,  absolute,  and  uncontrollable 
power  is  in  the  people,  before  they  make  a consti- 
tution, and  remains  in  them  after  it  is  made.  To 
control  the  power  and  conduct  of  the  legislature  by 
an  overruling  constitution,  was  an  improvement  in 
the  science  and  practice  of  government  reserved  to 
the  American  States ; and  at  the  foundation  of  this 
practice  lies  the  right  to  change  the  constitution  at 
pleasure,  — a right  which  no  positive  institution  can 
ever  take  from  the  people.  When  they  have  made 
a State  constitution,  they  have  bestowed  on  the 
government  created  by  it  a certain  portion  of  their 
power ; but  the  fee  simple  of  their  power  remains  in 
themselves. 

Mr.  Wilson  was  equally  clear  in  accounting  for 
the  omission  to  insert  a bill  of  rights  in  the  Con- 
stitution of  the  United  States.  In  a government,  he 
observed,  consisting  of  enumerated  powers,  such  as 
was  then  proposed  for  the  United  States,  a bill  of 
rights,  which  is  an  enumeration  of  the  powers  re- 
served by  the  people,  must  either  be  a perfect  or  an 
imperfect  statement  of  the  powers  and  privileges  re- 
served. To  undertake  a perfect  enumeration  of  the 
civil  rights  of  mankind,  is  to  undertake  a very  diffi- 
cult and  hazardous,  and  perhaps  an  impossible  task ; 
yet  if  the  enumeration  is  imperfect,  all  implied  power 
seems  to  be  thrown  into  the  hands  of  the  govern- 
ment, on  subjects  in  reference  to  which  the  authority 
of  government  is  not  expressly  restrained,  and  the 
rights  of  the  people  are  rendered  less  secure  than 
they  are  under  the  silent  operation  of  the  maxim 


Ch.  II.] 


THOMAS  McKEAN. 


523 


that  every  power  not  expressly  granted  remains 
in  the  people.  This,  he  stated,  was  the  view  taken 
by  a large  majority  of  the  national  Convention,  in 
which  no  direct  proposition  was  ever  made,  accord- 
ing to  his  recollection,  for  the  insertion  of  a bill  of 
rights.1  There  is,  undoubtedly,  a general  truth  in 
this  argument,  but,  like  many  general  truths  in  the 
construction  of  governments,  it  may  be  open  to 
exceptions  when  applied  to  particular  subjects  or 
interests.  It  appears  to  have  been,  for  the  time, 
successful;  probably  because  the  opponents  of  the 
Constitution,  with  whom  Mr.  Wilson  was  contend- 
ing, did  not  bring  forward  specific  propositions  for 
the  declaration  of  those  particular  rights  which 
were  made  the  subjects  of  special  action  in  other 
State  conventions. 

Besides  a very  thorough  discussion  of  these  great 
subjects,  Mr.  Wilson  entered  into  an  elaborate  ex- 
amination and  defence  of  the  whole  system  proposed 
in  the  Constitution.  He  was  most  ably  seconded  in 
his  efforts  by  Thomas  McKean,  then  Chief  Justice 
of  Pennsylvania  and  afterwards  its  Governor,  the 
greater  part  of  whose  public  life  had  been  passed  in 
the  service  of  Delaware,  his  native  State,  and  who 
had  always  been  a strenuous  advocate  of  the  inter- 
ests of  the  smaller  States,  but  who  found  himself 
satisfied  with  the  provision  for  them  made  by  the 
Constitution  for  the  construction  of  the  Senate  of 

1 This  was  a mistake.  On  the  to  prepare  a bill  of  rights,  but  the 
12th  of  September,  Messrs.  Gerry  motion  was  lost  by  an  equal  divis- 
and  Mason  moved  for  a committee  ion  of  the  States.  Elliot,  V.  538. 


524 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


the  United  States.1  “ I have  gone,”  said  he,  “ through 
the  circle  of  office,  in  the  legislative,  executive,  and 
judicial  departments  of  government;  and  from  all 
my  study,  observation,  and  experience,  I must  de- 
clare, that,  from  a full  examination  and  due  consid- 
eration of  this  system,  it  appears  to  me  the  best  the 
world  has  yet  seen.  I congratulate  you  on  the  fair 
prospect  of  its  being  adopted,  and  am  happy  in  the 
expectation  of  seeing  accomplished  what  has  long 
been  my  ardent  wish,  that  you  will  hereafter  have  a 
salutary  permanency  in  magistracy  and  stability  in 
the  laws.” 

The  result  of  the  discussion  in  the  convention  of 
Pennsylvania  was  the  ratification  of  the  Constitu- 
tion. The  official  ratification  sent  to  Congress  was 
signed  by  a very  large  majority  of  the  delegates,  and 
contains  no  notice  of  any  dissent.2  But  the  repre- 
sentatives of  that  portion  of  the  State  which  lay  w'est 
of  the  Susquehanna  generally  refused  their  assent, 
and  their  district  afterwards  became  the  place  in 
which  the  proposition  was  considered  whether  the 
government  should  be  allowed  to  be  organized.3 

The  convention  of  New  Jersey  was  in  session  at 
the  time  of  the  ratification  by  Pennsylvania.  Mr. 
Madison  had  passed  through  the  State,  in  the  au- 

1 Mr.  McKean,  although  his  res-  gress  and  President  of  the  State  of 
idence  was  at  Philadelphia,  repre-  Delaware. 

sented  the  lower  counties  of  Dela-  2 The  Constitution  was  ratified 
ware  in  Congress  from  1774  to  by  a vote  of  46  to  23. 

1783.  In  1777  he  was  made  Chief  3 This  was  at  a meeting  held  at 
Justice  of  Pennsylvania,  being  at  Harrisburg,  September  3d,  1788. 
the  same  time  a member  of  Con- 


Ch.  II.] 


NEW  JERSEY. 


525 


.) 


tumn,  on  his  way  to  the  Congress,  then  sitting  in 
the  city  of  New  York,  and  could  discover  no  evi- 
dence of  serious  opposition  to  the  Constitution. 
Lying  between  the  States  of  New  York  and  Penn- 
sylvania, New  Jersey  was  closely  watched  by  the 
friends  and  the  opponents  of  the  Constitution  in 
both  of  those  States,  and  was  likely  to  be  much 
influenced  by  the  predominating  sentiment  in  the 
one  that  should  first  act.1  But  the  people  of 
New  Jersey  had,  in  truth,  fairly  considered  the 
whole  matter,  and  had  found  what  their  own  inter- 
ests required.  They  alone,  of  all  the  States,  when 
the  national  Convention  was  instituted,  had  express- 
ly declared  that  the  regulation  of  commerce  ought 
to  be  vested  in  the  general  government.  They  had 
learned  that  to  submit  longer  to'  the  diverse  commer- 
cial and  revenue  systems  in  force  in  New  York  on 
the  one  side  of  them,  and  in  Pennsylvania  on  the 
other  side,  would  be  like  remaining  between  the 
upper  and  the  nether  millstone.  Their  delegates  in 
the  national  Convention  had,  it  is  true,  acted  with 
those  of  New  York,  in  the  long  contest  concerning 


1 The  opposite  parties  were  so 
much  excited  against  each  other, 
and  the  course  of  New  Jersey  was 
viewed  with  so  much  interest  at 
Philadelphia  among  the  “Feder- 
alists,” that  a story  found  currency 
and  belief  there,  to  the  effect  that 
Clinton,  the  Governor  of  New 
York,  had  offered  the  State  of 
New  Jersey,  through  one  of  its 
influential  citizens,  one  half  of  the 


impost  revenue  of  New  York,  if 
she  would  reject  the  Constitution. 
The  preposterous  character  of  such 
a proposition  stamps  the  rumor 
with  gross  improbability.  But  its 
circulation  evinces  the  anxiety  with 
which  the  course  of  New  Jersey 
was  regarded  in  the  neighboring 
States,  and  it  is  certain  that  the 
opposition  in  New  York  made 
great  efforts  to  influence  it. 


526 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


the  representative  system,  resisting  at  every  step  each 
departure  from  the  principle  of  the  Confederation, 
until  the  compromise  was  made  which  admitted  the 
States  to  an  equal  representation  in  the  Senate. 
Content  with  the  security  which  this  arrangement 
afforded,  the  people  of  New  Jersey  had  the  sagacity 
to  perceive  that  their  interests  were  no  longer  likely 
to  be  promoted  by  following  in  the  lead  of  the  Anti- 
Federalists  of  New  York.  Their  delegates  unani- 
mously ratified  the  Constitution  on  the  12th  of 
December,  five  days  after  the  ratification  of  Penn- 
sylvania. 

. A few  days  later,  there  came  from  the  far  South 
news  that  the  convention  of  Georgia  had,  with  like 
unanimity,  adopted  the  Constitution.  Neither  the 
people  of  the  State,  nor  their  delegates,  could  well 
have  acted  under  the  influence  of  what  was  taking 
place  in  the  centre  of  the  Union.  Their  situation 
was  too  remote  for  the  reception,  at  that  day,  within 
the  same  fortnight,  of  the  news  of  events  that  had 
occurred  in  Pennsylvania  and  New  Jersey,  and  they 
could  scarcely  have  read  the  great  discussions  that 
were  going  on  in  various  forms  of  controversy  in  the 
cities  of  New  York  and  Philadelphia,  and  through- 
out the  Middle  and  the  Eastern  States.  Wasted 
excessively  during  the  Revolution,  by  the  nature  of 
the  warfare  carried  on  within  her  limits ; left  at 
the  peace  to  contend  with  a large,  powerful,  and 
cruel  tribe  of  Indians,  that  pressed  upon  her  west- 
ern settlements ; and  having  her  southern  frontier 
bordering  upon  the  unfriendly  territory  of  a Span- 


Ch.  II.] 


CONNECTICUT. 


527 


ish  colony,  — the  State  of  Georgia  had  strong  mo- 
tives to  lead  her  to  embrace  the  Constitution  of 
the  United  States,  and  found  little  in  that  instru- 
ment calculated  to  draw  her  in  the  opposite  direc- 
tion. Her  delegates  had  resisted  the  surrender  of 
control  over  the  slave-trade,  but  they  had  acqui- 
esced in  the  compromise  on  that  subject,  and  there 
was  in  truth  nothing  in  the  position  in  which  it  was 
left  that  was  likely  to  give  the  State  serious  dissat- 
isfaction or  uneasiness.  The  people  of  Georgia  had 
something  more  important  to  _ do  than  to  quarrel 
with  their  representatives  about  the  principles  or 
details  of  the  system  to  which  they  had  consented 
in  the  national  Convention.  They  felt  the  want  of 
a general  government  able  to  resist,  with  a stronger 
hand  than  that  of  the  Confederation,  the  evils  which 
pressed  upon  them.1  Their  assent  was  unanimous- 
ly given  to  the  Constitution  on  the  2d  of  January, 
1788. 

The  legislature  of  Connecticut  had  ordered  a con- 
vention to  be  held  on  the  4th  of  January.  When 
the  elections  were  over,  it  was  ascertained  that  there 
was  a large  majority  in  favor  of  the  Constitution; 


1 The  situation  of  Georgia  was 
brought  to  the  notice  of  Washing- 
ton immediately  after  his  first  in- 
auguration as  President  of  the 
United  States,  in  an  Address  pre- 
sented to  him  by  the  legislature  of 
the  State,  in  which  they  set  forth 
two  prominent  subjects  on  which 
they  looked  for  protection  to  “ the 
influence  and  power  of  the  Union.” 


One  of  these  was  the  exposure  of 
their  frontier  to  the  ravages  of  the 
Creek  Indians.  The  other  was 
the  escape  of  their  slaves  into 
Florida,  whence  they  had  never 
been  able  to  reclaim  them.  Both 
of  these  matters  received  the  early 
attention  of  Washington’s  admin- 
istration. 


528 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


but  there  was  to  be  some  opposition,  proceeding 
principally  from  that  portion  of  the  people  who  re- 
sisted whatever  tended  to  the  vigor  and  stability  of 
government,  — a spirit  that  existed  to  some  extent 
in  all  the  New  England  States.  When  the  conven- 
tion of  the  State  assembled,  the  principal  duty  of 
advocating  the  adoption  of  the  Constitution  devolved 
on  Oliver  Ellsworth,  who  had  borne  an  active  and 
distinguished  part  in  its  preparation.  He  found  that 
the  topic  which  formed  the  chief  subject  of  all  the 
arguments  against  the  Constitution,  was  the  general 
power  of  taxation  which  it  would  confer  on  the 
national  government,  and  the  particular  power  of 
laying  imposts.  Mr.  Ellsworth  was  eminently  qual- 
ified to  explain  and  defend  the  proposed  revenue  sys- 
tem. While  he  contended  for  the  necessity  of  giv- 
ing to  Congress  a general  power  to  levy  direct  taxes, 
in  order  that  the  government  might  be  able  to  meet 
extraordinary  emergencies,  and  thus  be  placed  upon 
an  equality  with  other  governments,  he  demonstrat- 
ed by  public  and  well-known  facts  that  an  indirect 
revenue,  to  be  derived  from  imposts,  would  be  at 
once  the  easiest  and  most  reliable  mode  of  defraying 
the  ordinary  expenses  of  the  government,  because  it 
would  interfere  less  than  any  other  form  of  taxa- 
tion with  the  internal  police  of  the  States  ; and  he 
argued,  from  sufficient  data,  that  a very  small  rate 
of  duty  would  be  enough  for  this  purpose.1  Under 

1 He  stated  tlie  annual  expen-  debt,  at  £ 260,000  (currency),  and 
diture  of  the  government,  includ-  then  showed  that,  in  the  three 
ing  the  interest  on  the  foreign  States  of  Massachusetts,  New  York, 


Ch.  II.] 


CLOSE  OF  THE  YEAR  1787. 


529 


his  influence  and  that  of  Oliver  Wolcott,  Richard 
Law,  and  Governor  Huntington,  the  Constitution 
was  ratified  by  a large  majority,  on  the  9th  of  Jan- 
uary.1 

The  action  of  Connecticut  completed  the  list  of 
the  States  that  ratified  the  Constitution  without  any 
formal  record  of  objections,  and  without  proposing 
or  insisting  upon  amendments.  The  opposition  in 
these  five  States  had  been  overcome  by  reason  and 
argument,  and  they  were  a majority  of  the  whole 
number  of  States  whose  accession  was  necessary  to 
the  establishment  of  the  government.  But  a new 
act  in  the  drama  was  to  open  with  the  new  year. 
The  conventions  of  Massachusetts,  New  York,  and 
Virginia  were  still  to  meet,  and  each  of  them  was 
full  of  elements  of  opposition  of  the  most  formida- 
ble character,  and  of  different  kinds,  which  made 
the  result  in  all  of  them  extremely  doubtful.  If  all 
the  three  were  to  adopt  the  Constitution,  still  one 
more  must  be  gained  from  the  States  of  New  Hamp- 
shire, Maryland,  and  North  and  South  Carolina.  The 
influence  of  each  accession  to  the  Constitution  on 
the  remaining  States  might  be  expected  to  be  con- 
siderable ; but,  unfortunately,  the  convention  of  New 
Hampshire  was  to  meet  five  months  before  those  of 
Virginia  and  New  York,  and  a large  number  of  its 
members  had  been  instructed  to  reject  the  Constitu- 

and  Pennsylvania,  £ 160,000  or  in  the  convention  of  Connecticut 
£180,000  per  annum  had  been  are  known  to  be  preserved.  They 
raised  by  impost.  may  be  found  in  the  second  vol- 

1 Fragments  only  of  the  debates  ume  of  Elliot’s  collection. 

67 


VOL  II. 


530 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


tion.  If  New  Hampshire  and  Massachusetts  were 
to  refuse  their  assent  in  the  course  of  the  winter, 
the  States  that  were  to  act  in  the  spring  could 
scarcely  he  expected  to  withstand  the  untoward  in- 
fluence of  such  an  example,  which  would  probably 
operate  with  a constantly  accelerating  force  through- 
out the  whole  number  of  the  remaining  States. 

The  convention  of  Massachusetts  commenced  its 
session  on  the  9th  of  January,  the  same  day  on 
which  that  of  Connecticut  closed  its  proceedings. 
The  State  certainly  held  a very  high  rank  in  the 
Union.  Her  Revolutionary  history  was  filled  with 
glory ; with  sufferings  cheerfully  borne ; with  exam- 
ples of  patriotism  that  were  to  give  her  enduring 
fame.  The  blood  of  martyrs  in  that  cause,  which 
she  had  made  from  the  first  the  cause  of  the  whole 
country,  had  been  poured  profusely  upon  her  soil, 
and  in  the  earlier  councils  of  the  Union  she  had 
maintained  a position  of  commanding  influence. 
But  there  had  been  in  her  political  conduct,  since 
the  freedom  of  the  country  was  achieved,  an  un- 
steadiness and  vacillation  of  which  her  former  rep- 
utation gave  no  presage.  In  1783,  the  legislature 
had  refused  to  give  the  revenue  powers  asked  for  by 
the  Congress,  for  the  miserable  reason  that  the  Con- 
gress had  granted  half-pay  for  life  to  the  officers  of 
the  Revolutionary  army.  In  May,  1785,  the  legisla- 
ture adopted  a resolution  for  a convention  of  the 
States  to  consider  the  subject  of  enlarging  the 
powers  of  the  Federal  Union,  and  in  the  following 
November  they  rescinded  it.  These,  and  other  oc- 


Ch.  II.] 


MASSACHUSETTS. 


531 


currences,  when  remembered,  gave  the  friends  of  the 
Constitution  elsewhere  great  anxiety,  as  they  turned 
their  eyes  towards  Massachusetts.  They  were  fully 
aware,  too,  that  the  recent  insurrection  in  that  State, 
and  the  severe  measures  which  had  followed  it,  had 
created  divisions  in  society  which  it  would  be  diffi- 
cult, if  not  impossible,  to  heal. 

But  it  was  not  easy  for  the  most  intelligent  men 
out  of  the  State  to  appreciate  fully  all  the  causes 
that  exposed  the  Constitution  of  the  United  States 
to  a peculiar  hazard  in  Massachusetts,  and  made  it 
necessary  to  procure  its  ratification  by  a kind  of 
compromise  with  the  opposition  for  a scheme  of 
amendments.  In  no  State  was  the  spirit  of  liberty 
more  jealous  and  exacting.  In  the  midst  of  the 
Revolution,  and  led  by  the  men  who  had  carried  on 
the  profound  discussions  which  preceded  it,  — dis- 
cussions in  which  the  natural  rights  of  mankind 
and  the  civil  rights  of  British  subjects  were  exam- 
ined and  displayed  as  they  had  never  been  before,  — 
the  people  of  Massachusetts  had  framed  a State 
constitution,  filled  with  the  most  impressive  maxims 
and  the  most  solemn  securities  with  which  public  lib- 
erty has  ever  been  invested.  Not  content  to  trust  ob- 
vious truths  to  implication,  they  expressly  declared 
that  government  is  instituted  for  the  happiness  and 
welfare  of  the  governed,  and  they  fenced  it  round 
not  only  with  the  chief  restrictions  gained  by  their 
English  ancestors,  from  Magna  Charta  down  to  the 
Revolution  of  1688,  but  with  many  safeguards  which 
had  not  descended  to  them  from  Runnymede  or 


532 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


Westminster.  It  may  be  that  an  anxious  student 
of  politics,  examining  the  early  constitution  of  Mas- 
sachusetts, — happily  in  its  most  important  features 
yet  unchanged,  — would  pronounce  it  unnecessa- 
rily careful  of  personal  rights  and  too  jealous  for 
the  interests  of  liberty.  But  no  intelligent  mind, 
thoughtful  of  the  welfare  of  society,  can  now  think 
that  to  have  been  an  excess  of  wisdom  which  formed 
a constitution  of  republican  government  that  has  so 
well  withstood  the  assaults  of  faction  and  the  level- 
ling tendencies  of  a levelling  age,  and  has  withstood 
them  because,  while  it  carefully  guarded  the  liber- 
ties of  the  people,  it  secured  those  liberties  by  insti- 
tutions which  stand  as  bulwarks  between  the  power 
of  the  many  and  the  rights  of  the  few. 

It  may  hereafter  become  necessary  for  me  to  con- 
sider what  degree  of  importance  justly  belongs  to  the 
amendments  which  the  State  of  Massachusetts,  and 
to  those  which  other  States,  so  impressively  insisted 
ought  to  be  made  to  the  Constitution  of  the  United 
States.  Without  at  present  turning  farther  aside 
from  the  narrative  of  events,  I content  myself  here 
with  observing,  that,  whether  the  alleged  defects  in 
the  Constitution  were  important  or  unimportant,  a 
people  educated  as  the  people  of  Massachusetts  had 
been  would  naturally  regard  some  provisions  as  es- 
sential which  they  did  not  find  in  the  plan  presented 
to  them.  I 

The  general  aspect  of  parties  in  Massachusetts, 
down  to  the  time  when  the  convention  met,  has  been 
already  considered.  In  the  convention  itself  there 


Ch.  II.] 


MASSACHUSETTS. 


533 


was  a majority  originally  opposed  to  the  Constitu- 
tion ; and  if  a vote  had  been  taken  at  any  time  be- 
fore the  proposition  for  amendments  was  brought 
forward,  the  Constitution  would  have  been  rejected. 
The  opposition  consisted  of  a full  representation  of 
the  various  parties  and  interests  already  described  as 
existing  among  the  people  of  the  State  who  were 
unfriendly  to  it.  One  contemporary  account  gives 
as  many  as  eighteen  or  twenty  members,  who  had 
actually  been  out  in  what  was  called  Shays’s  “army.” 
Whether  this  enumeration  was  strictly  correct  or  not, 
it  is  well  known  that  the  western  counties  of  the 
State  sent  a large  number  of  men  whose  sympathies 
were  with  that  insurrection,  who  were  friends  of 
paper  money  and  tender  laws,  and  enemies  of  any 
system  that  would  promote  the  security  of  debts. 
The  members  from  the  province  of  Maine  had  their 
own  special  objects  to  pursue.  In  addition  to  these 
were  the  honest  and  well-meaning  doubters,  who 
had  examined  the  Constitution  with  care  and  object- 
ed to  it  from  principle.  The  anticipated  leader  of 
this  miscellaneous  host  was  that  celebrated  and  ar- 
dent patriot  of  the  Revolution,  Samuel  Adams.  With 
all  his  energy  and  his  iron  determination  of  charac- 
ter, however,  he  could  be  cautious  when  caution  was 
expedient.  He  had  read  the  Constitution,  and  all 
the  principal  publications  respecting  it  which  had 
then  appeared,  and  down  to  the  time  of  the  meet- 
ing of  the  convention  he  had  maintained  a good  deal 
of  reserve.  But  it  was  known  that  he  disapproved 
of  it. 


534 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


This  remarkable  man  — often  called  the  Ameri- 
can Cato  — was  far  better  fitted  to  rouse  and  direct 
the  storms  of  revolution,  than  to  reconstruct  the 
political  fabric  after  revolution  had  done  its  work. 
He  had  the  passionate  love  of  liberty,  fertility  of 
resource,  and  indomitable  will,  which  are  most 
needed  in  a truly  great  leader  of  a popular  strug- 
gle with  arbitrary  power.  But  that  struggle  over, 
his  usefulness  in  an  emergency  like  the  one  in 
which  Massachusetts  was  now  placed  was  limited  to 
the  actual  necessity  for  the  intervention  of  an  ex- 
treme devotion  to  the  maxims  and  principles  of  pop- 
ular freedom.  He  believed  that  there  was  such  a 
necessity,  and  he  acted  always  as  he  believed.  But 
his  influence,  at  this  time,  was  by  no  means  commen- 
surate with  his  power  and  reputation  at  a former 
day,  and  he  appears  to  have  wisely  avoided  a direct 
contest  with  the  large  body  of  very  able  men  who 
supported  the  Constitution. 

That  body  of  men  would  certainly  have  been, 
in  any  assembly  convened  for  such  a purpose,  an 
overmatch  in  debate  for  Samuel  Adams;  for  they 
were  the  civilians  Fisher  Ames,  Parsons,  King, 
Sedgwick,  Gorham,  Dana,  Gore,  Bowdoin,  and 
Sumner,  the  Revolutionary  officers  Heath,  Lincoln, 
and  Brooks,  and  several  of  the  most  distinguished 
clergymen  in  the  State.  The  names  of  the  members 
who  acted  on  the  same  side  with  Mr.  Adams,  and 
were  then  regarded  as  leaders  of  the  opposition,  have 
reached  posterity  in  no  other  connection.1  But  some 

1 Three  of  them,  Widgery,  Thompson,  and  Nason,  were  from  Maine; 


Ch.  II.] 


MASSACHUSETTS. 


535 


of  the  elements  of  which  that  opposition  was  com- 
posed could  not  be  controlled  by  any  superiority  in 
debate,  and  were,  therefore,  little  in  need  of  great 
powers  of  discussion  or  great  wisdom  in  council. 
So  far  as  their  objections  related  to  the  powers  to 
be  conferred  on  the  general  government,  or  to  the 
structure  of  the  proposed  system,  they  could  be 
answered,  and  many  of  them  could  be,  and  were, 
convinced.  But  Avith  respect  to  what  they  consid- 
ered the  defects  of  the  Constitution,  theoretical  rea- 
soning, however  able,  could  have  no  influence  over 
men  whose  minds  were  made  up ; and  it  became,  as 
the  reader  will  see,  necessary  to  make  an  effort  to 
gain  a majority  by  some  course  of  action  which 
would  involve  the  concession  that  the  proposed 
system  required  amendment. 

There  were  great  hazards  attending  this  course, 
in  reference  to  its  effect  on  other  States,  although 
it  was  not  impossible  to  procure  by  it  the  ratification 
of  this  convention.  Notwithstanding  all  that  had 
detracted  from  the  former  high  standing  of  the  State, 
— notwithstanding  the  easy  explanation  that  might 
be  given  of  the  influence  of  her  late  internal  disturb- 
ances upon  her  subsequent  political  affairs,  — she 
was  still  Massachusetts;  still  she  was  the  eldest  of 
all  the  States  but  one,  — still  she  held  in  the  sacred 
places  of  her  soil  the  bones  of  the  first  martyrs  to 
liberty,  — still  she  was  renowned,  as  she  has  ever 

there  was  a Dr.  Taylor  from  the  These  gentlemen  carried  on  the 
county  of  Worcester,  and  a Mr.  greater  part  of  the  discussion 
Bishop  from  the  county  of  Bristol.  against  the  Constitution. 


536 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


been,  for  her  intelligence,  — still  she  wore  a name 
of  more  than  ordinary  consideration  among  her  sis- 
ters of  the  Confederacy.  If  it  should  go  forth  to 
New  York,  to  Virginia,  to  the  Carolinas,  that  Mas- 
sachusetts had  pronounced  the  Constitution  unfit 
for  the  acceptance  of  a free  people,  or  had  declared 
that  public  liberty  could  not  be  preserved  under  it 
without  the  addition  of  provisions  which  its  framers 
had  not  made,  the  effect  might  be  disastrous  beyond 
all  previous  calculation.  The  legislature  of  New 
York,  in  session  at  the  same  time  with  the  conven- 
tion of  Massachusetts,  was  much  divided  on  the 
question  of  submitting  the  Constitution  to  a conven- 
tion, and  it  was  the  opinion  of  careful  observers  that 
the  result  in  either  way  in  the  latter  State  would  in- 
volve that  in  the  former.  In  Virginia  the  elections 
for  their  convention  were  soon  to  take  place.  In 
Pennsylvania  the  minority  were  becoming  restless 
under  their  defeat,  and  were  agitating  plans  which 
looked  to  the  obstruction  of  the  government  when 
an  attempt  should  be  made  to  organize  it.  The 
convention  of  South  Carolina  was  not  to  meet  until 
May,  and  North  Carolina  stood  in  an  extremely 
doubtful  position.  A great  weight  of  responsibility 
rested  therefore  upon  the  convention  of  Massachu- 
setts. 

Its  proceedings  commenced  with  a desultory  de- 
bate upon  the  several  parts  of  the  instrument,  which 
lasted  until  the  30th  of  January ; the  friends  of  the 
Constitution  having  carefully  provided,  by  a vote  at 
the  outset,  that  no  separate  question  should  be  taken. 


Ch.  II.] 


MASSACHUSETTS. 


537 


The  discussion  of  the  various  objections  having  been 
exhausted,  Parsons 1 moved  that  the  instrument  be 
assented  to  and  ratified.  One  or  two  general  speech- 
es followed  this  motion,  and  then  Hancock,  the 
President  of  the  convention,  descended  from  the 
chair,  and,  with  some  conciliatory  observations,  laid 
before  it  a proposition  for  certain  amendments. 
This  step  was  not  taken  by  him  upon  his  own 
suggestion  merely,  although  he  was  doubtless  very 
willing  to  be  the  medium  of  a reconciliation  be- 
tween the  contending  parties.  He  was  at  that 
time  Governor  of  the  State,  and  had  been  placed 
in  the  chair  of  the  convention,  partly  in  deference 
to  his  official  station  and  his  personal  eminence,  and 
partly  because  he  held  a rather  neutral  position 
with  respect  to  the  Constitution.  These  circum- 
stances, as  well  as  his  Revolutionary  distinction,  led 
the  friends  of  the  Constitution  to  seek  his  inter- 
vention; and  his  love  of  popularity  and  deference 
made  the  office  of  arbitrator  exceedingly  agreeable 
to  him.  The  selection  was  a wise  one,  for  Han- 
cock had  great  influence  with  the  classes  of  men 
composing  the  opposition,  and  he  could  not  be  sus- 
pected of  any  undue  admiration  of  the  system  the 
adoption  of  which  he  was  to  recommend. 

He  proceeded  with  characteristic  caution.  It 
does  not  appear,  from  what  is  preserved  of  the  re- 
marks with  which  he  presented  his  amendments, 
whether  he  intended  they  should  become  a condition 

1 Theophilus  Parsons,  afterwards  the  celebrated  Chief  Justice  of 
Massachusetts. 


VOL.  II. 


68 


538 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


precedent  to  the  ratification,  or  should  be  adopted 
as  a recommendation  subsequent  to  the  assent  of 
the  convention  to  the  Constitution  then  before  it. 
He  brought  them  forward,  he  said,  to  quiet  the  ap- 
prehensions and  remove  the  doubts  of  gentlemen, 
relying  on  their  candor  to  bear  him  witness  that  his 
wishes  for  a good  constitution  were  sincere.  But 
the  form  of  ratification  which  he  proposed  contained 
a distinct  and  separate  acceptance  of  the  Constitu- 
tion, and  the  amendments  followed  it,  with  a rec- 
ommendation that  they  “be  introduced  into  the  said 
Constitution.”  Samuel  Adams,  with  much  commen- 
dation of  the  Governor’s  proposition,  immediately 
affected  to  understand  it  as  recommending  con- 
ditional amendments,  and  advocated  it  in  that  sense. 
Other  members  of  the  opposition  understood  it  in 
the  opposite  sense,  and,  fearing  its  effect,  insisted 
that  the  convention  had  no  power  to  propose  amend- 
ments, and  that  there  could  be  no  probability  that, 
if  recommended  to  the  attention  of  the  first  Con- 
gress that  might  sit  under  the  Constitution,  they 
would  ever  be  adopted.  Upon  both  of  these  points, 
the  arguments  of  the  other  side  were  sufficient  to 
convince  a few  of  the  more  candid  members  of  the 
opposition,  and  the  Constitution  was  ratified  on  the 
7th  of  February,  by  a majority  of  nineteen  votes,1 
the  ratification  being  followed  by  a recommendation 
of  certain  amendments,  and  an  injunction  addressed 
to  the  representatives  of  the  State  in  Congress  to 
insist  at  all  times  on  their  being  considered  and 

1 Yeas,  187;  nays,  168. 


Ch.  II.] 


MASSACHUSETTS. 


539 


acted  upon  in  the  mode  provided  by  the  fifth  article 
of  the  Constitution. 

The  smallness  of  the  majority  in  favor  of  the 
Constitution  was  in  a great  degree  compensated  by 
the  immediate  conduct  of  those  who  had  opposed  it. 
Many  of  them,  before  the  final  adjournment,  ex- 
pressed their  determination,  now  that  it  had  received 
the  assent  of  a majority,  to  exert  all  their  influence 
to  induce  the  people  to  anticipate  the  blessings 
which  its  advocates  expected  from  it.  They  acted 
in  accordance  with  their  professions ; and  those  por- 
tions of  the  people  whose  sentiments  they  had  rep- 
resented exhibited  generally  the  same  candor  and 
patriotism,  and  acquiesced  at  once  in  the  result. 
This  course  of  the  opposition  in  Massachusetts  was 
observed  elsewhere,  and  largely  contributed  to  give 
to  the  action  of  the  State,  in  proposing  amendments, 
a salutary  influence  in  some  quarters,  which  would 
otherwise  have  probably  failed  to  attend  it. 

The  amendments  proposed  by  the  convention  of 
Massachusetts  were,  as  was  claimed  by  those  who 
advocated  them,  of  a general,  and  not  a local  char- 
acter; but  they  were  at  the  same  time  highly  char- 
acteristic of  the  State.  They  may  be  divided  into 
three  classes.  One  of  them  embraced  that  general 
declaration  which  was  afterwards  incorporated  with 
the  amendments  to  the  Constitution,  and  which 
expressly  reserved  to  the  States  or  the  people  the 
powers  not  delegated  to  the  United  States.  Another 
class  of  them  comprehended  certain  restraints  upon 
the  powers  granted  to  Congress  by  the  Constitution, 


540 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


with  respect  to  elections,  direct  taxes,  the  commer- 
cial power,  the  jurisdiction  of  the  courts,  and  the 
power  to  consent  to  the  holding  of  titles  or  offices 
conferred  by  foreign  sovereigns.  The  third  class 
contemplated  the  two  great  provisions  of  a present- 
ment by  a grand  jury,  for  crimes  by  which  an  infa- 
mous or  a capital  punishment  might  be  incurred, 
and  trial  by  jury  in  civil  actions  at  the  common  law 
between  citizens  of  different  States. 

The  people  of  Boston,  although  in  general  strong- 
ly in  favor  of  the  Constitution,  had  carefully  abstained 
from  every  attempt  to  influence  the  convention.  But 
now  that  the  ratification  was  carried,  they  determined 
to  give  to  the  event  all  the  importance  that  belonged 
to  it,  by  public  ceremonies  and  festivities.  On  the 
17  th  of  February,  there  issued  from  the  gates  of 
Faneuil  Hall  an  imposing  procession  of  five  thou- 
sand citizens,  embracing  all  the  trades  of  the  town 
and  its  neighborhood,  each  with  its  appropriate  dec- 
orations, emblems,  and  mottoes.  In  the  centre  of 
this  long  pageant,  to  mark  the  relation  of  everything 
around  it  to  maritime  commerce,  and  the  relation  of 
all  to  the  new  government,  was  borne  the  ship  Fed- 
eral Constitution,  with  full  colors  flying,  and  attend- 
ed by  the  merchants,  captains,  and  seamen  of  the 
port.1  On  the  following  day,  the  rejoicings  were 
terminated  by  a public  banquet,  at  which  each  of 
the  States  that  had  then  adopted  the  Constitution 

1 This  "was  the  first  of  a series  of  the  Union,  in  honor  of  the  rati- 
of  similar  pageants,  which  took  fication  of  the  Constitution, 
place  in  the  other  principal  cities 


Ch.  IL] 


NEW  HAMPSHIRE. 


541 


was  separately  toasted,  the  minorities  of  Connecti- 
cut and  Massachusetts  were  warmly  praised  for  their 
frank  and  patriotic  submission,  and  strong  hopes 
were  expressed  of  the  State  of  New  York. 

In  this  mamier  the  Federalists  of  Massachusetts 
wisely  sought  to  kindle  the  enthusiasm  of  the  coun- 
try, and  to  conciliate  the  opinion  of  the  States  which 
were  still  to  act,  in  favor  of  the  new  Constitution. 
The  influence  of  their  course  did  not  fail  in  some 
quarters.  In  the  convention  of  New  Hampshire, 
which  assembled  immediately  after  that  of  Massa- 
chusetts was  adjourned,  although  there  was  a ma- 
jority who,  either  bound  by  instructions  or  led  by 
their  own  opinions,  would  have  rejected  the  Consti- 
tution if  required  to  vote  upon  it  immediately,  yet 
that  same  majority  was  composed  chiefly  of  men 
willing  to  hear  discussion,  willing  to  be  convinced, 
and  likely  to  feel  the  influence  of  what  had  occurred 
in  the  leading  State  of  New  England.  There  was 
a body  of  Federalists  in  New  Hampshire  acting  in 
concert  with  the  leading  men  of  that  party  in  Massa- 
chusetts. They  caused  the  same  form  of  ratification 
and  the  same  amendments  which  had  been  adopted 
in  the  latter  State,  with  some  additional  ones,  to  be 
presented  to  their  own  convention.1  The  discussions 

1 The  form  of  ratification  and  the  Sullivan,  an  eminent  lawyer  of  Bos- 
amendments  introduced  by  Han-  ton,  afterwards  Governor  of  Massa- 
cock  into  the  convention  of  Massa-  chusetts.  The  reader  should  com- 
chusetts  were  drawn  by  Theophilus  pare  the  Massachusetts  amendments 
Parsons.  They  were  probably  com-  with  those  of  the  other  States  whose 
municated  to  General  Sullivan,  the  action  followed  that  of  Massaehu- 
President  of  the  New  Hampshire  setts,  for  the  purpose  of  seeing  the 
convention,  by  his  brother,  James  influence  which  they  exerted.  (All 


542 


ADOPTION  OF  THE  CONSTITUTION.  [Book  Y. 


changed  the  opinions  of  many  of  the  members,  but 
it  was  not  deemed  expedient  to  incur  the  hazard  of 
a vote.  The  friends  of  the  Constitution  found  it 
necessary  to  consent  to  an  adjournment,  in  order 
that  the  instructed  delegates  might  have  an  oppor- 
tunity to  lay  before  their  constituents  the  informa- 
tion which  they  had  themselves  received,  and  of 
which  the  people  in  the  more  remote  parts  of  the 
State  were  greatly  in  need.  Unfortunately,  however, 
for  the  course  of  things  in  other  States,  the  occur- 
rence of  a general  election  in  New  Hampshire  made 
it  necessary  to  adjourn  the  convention  until  the  mid- 
dle of  June.  We  have  seen  what  was  the  effect  of 
this  proceeding  in  Virginia,  where  it  was  both  mis- 
understood and  misrepresented.  But  it  saved  the 
Constitution  in  New  Hampshire. 

Six  States  only,  therefore,  had  adopted  the  Con- 
stitution at  the  opening  of  the  spring  of  1788.  The 
convention  of  Maryland  assembled  at  Annapolis  on 
the  21st  of  April.  The  convention  of  South  Caro- 
lina was  to  follow  in  May,  and  the  conventions  of 
Virginia  and  New  York  were  to  meet  in  June.  So 
critical  was  the  period  in  which  the  people  of  Mary- 
land were  to  act,  that  Washington  considered  that 
a postponement  of  their  decision  would  cause  the 
final  defeat  of  the  Constitution ; for  if,  under  the 
influence  of  such  a postponement,  following  that  of 
New  Hampshire,  South  Carolina  should  reject  it, 

the  amendments  may  be  found  in  post , Chap.  III.,  as  to  the  effect  of 
the  Journals  of  the  Old  Congress,  the  course  of  Massachusetts  on  the 
Yol.  XIII.,  Appendix.)  See  also  mind  of  Jefferson. 


Ch.  IL] 


MARYLAND. 


543 


its  fate  would  turn  on  the  determination  of  Vir- 
ginia. 

The  people  of  Maryland  appear  to  have  been  fully 
aware  of  the  importance  of  their  course.  They  not 
only  elected  a large  majority  of  delegates  known  to 
be  in  favor  of  the  Constitution,  but  a majority  of  the 
counties  instructed  their  members  to  ratify  it  as 
speedily  as  possible,  and  to  do  no  other  act.  This 
settled  determination  not  to  consider  amendments, 
and  not  to  have  the  action  of  the  State  misinter- 
preted, or  its  influence  lost,  gave  great  dissatisfaction 
to  the  minority.  Their  efforts  to  introduce  amend- 
ments were  disposed  of  quite  summarily.  The  ma- 
jority would  entertain  no  proposition  but  the  single 
question  of  ratification,  which  was  carried  by  sixty- 
three  votes  against  eleven,  on  the  28th  of  April. 

On  the  first  of  May,  there  were  public  rejoicings 
and  a procession  of  the  trades,  in  Baltimore,  followed 
by  a banquet,  a ball,  and  an  illumination.  In  this 
procession,  the  miniature  ship  “ Federalist,”  which 
was  afterwards  presented  to  General  Washington, 
and  long  rode  at  anchor  in  the  Potomac  opposite 
Mount  Vernon,  was  carried,  as  the  type  of  commerce 
and  the  consummate  production  of  American  naval 
architecture.1  The  next  day  a packet  sailed  from 
the  port  of  Baltimore  for  Charleston,  carrying  the 
news  of  the  ratification  by  Maryland.2  In  how  many 


1 This  little  vessel  sailed  from 
Baltimore  on  the  1st  of  June,  and 

arrived  at  Mount  Yernon,  “com- 
pletely rigged  and  highly  orna- 
mented,” on  the  8th.  It  was  a 


fine  specimen  of  the  then  state  of 
the  mechanic  arts.  See  an  ac- 
count of  it  in  Washington’s  Works, 
IX.  375,  376. 

2 There  was  then  no  land  com- 


544 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


days  this  “ coaster  ” performed  her  voyage  is  not 
known ; but  it  is  a recorded,  though  now  forgotten, 
fact  among  the  events  of  this  period,  that  on  her 
return  to  Baltimore,  where  she  arrived  on  Saturday 
the  31st  of  May,  the  same  vessel  brought  back  the 
welcome  intelligence,  that  on  the  23d  of  that  month, 
“at  five  o’clock  in  the  afternoon,”  the  convention  of 
South  Carolina  had  ratified  the  Constitution  of  the 
United  States.  A salute  of  cannon  on  Federal  Hill, 
in  the  neighborhood  of  Baltimore,  spread  the  joyful 
news  far  down  the  waters  of  the  Chesapeake  to  the 
shores  of  Virginia,  and  bold  express  riders  placed 
it  in  Philadelphia  before  the  following  Monday 
evening. 

Such  was  the  anxiety  with  which  the  friends  of 
the  Constitution  in  the  centre  of  the  Union  watched 
the  course  of  events  in  the  remaining  States.  The 
accession  of  South  Carolina  was  naturally  regarded 
as  very  important.  Her  delegates  in  the  national 
Convention  had  assumed  what  might  be  thought,  at 
home  and  elsewhere,  to  be  a great  responsibility. 
They  had  taken  a prominent  part  in  the  settlement 
of  the  compromises  which  became  necessary  between 
the  Northern  and  the  Southern  States.  They  had 
consented  to  a full  commercial  power,  to  be  exercised 
by  a majority  in  both  houses  of  Congress ; to  a power 

munication  between  the  two  places,  Carolina,  was  more  than  four  weeks 
that  could  have  carried  intelligence  on  its  way  to  Mount  Vernon, 
in  less  than  a month.  A letter  writ-  (Washington’s  Works,  IX.  389.) 
ten  by  General  Pinckney  to  Gener-  General  Washington  had  received 
al  Washington  on  the  24th  of  May,  the  same  news  by  way  of  Baltimore 
announcing  the  result  in  South  soon  after  its  arrival  there. 


Cu.  II  ] 


SOUTH  CAROLINA. 


545 


to  extinguish  the  slave-trade  in  twenty  years ; and 
to  a power  of  direct  and  indirect  taxation,  exports 
alone  excepted.  Would  the  people  of  South  Caro- 
lina consider  the  provisions  made  for  their  peculiar 
demands  as  equivalents  for  what  had  been  surren- 
dered? Would  they  acquiesce  in  a system  founded 
in  the  necessities  for  local  sacrifices,  standing  as 
they  did  at  the  extremity  of  the  interests  involved 
in  the  Southern  side  of  the  adjustment? 

It  is  not  probable  that  the  people  of  South  Caro- 
lina, at  the  time  of  their  adoption  of  the  Constitu-  ’ 
tion,  supposed  that  they  had  any  solid  reasons  for 
dissatisfaction  with  such  of  its  arrangements  as  in 
any  way  concerned  the  subject  of  slavery.  A good 
deal  was  said,  ad  captandum , by  the  opponents  of 
the  Constitution,  on  these  points,  but  it  does  not 
appear  to  have  been  said  with  much  effect.  No 
man  who  has  ever  been  placed  by  the  State  of  South 
Cai'olina  in  a public  position,  has  been  more  true  to 
her  interests  and  rights  than  General  Pinckney; 
and  General  Pinckney  furnished  to  the  people  of 
the  State  — speaking  from  his  place  in  the  legisla- 
ture on  his  return  from  the  national  Convention  — 
what  he  considered,  and  they  received,  as  a complete 
answer  to  all  that  was  addressed  to  their  local  fears 
and  prejudices,  on  these  particular  topics.  When 
he  had  shown  that,  by  the  universal  admission  of  the 
country,  the  Constitution  had  given  to  the  general 
government  no  power  to  emancipate  the  slaves  with- 
in the  several  States,  and  that  it  had  secured  a right 
which  did  not  previously  exist,  of  recovering  those 

69 


VOL.  II. 


546 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


who  might  escape  into  other  States ; that  the  slave- 
trade  would  remain  open  for  twenty  years,  a period 
that  would  suffice  for  the  supply  of  all  the  labor  of 
that  kind  which  the  State  would  require ; and  that 
the  admission  of  the  blacks  into  the  basis  of  repre- 
sentation was  a concession  in  favor  of  the  State,  of 
singular  importance  as  well  as  novelty ; — he  had 
disposed  of  every  ground  of  opposition  relating  to 
these  points.  And  so  the  people  of  the  State  mani- 
festly considered. 

• But  there  was  one  part  of  the  arrangements  in- 
cluded in  the  Constitution,  on  which  they  appear  to 
have  thought  that  they  had  more  reason  to  pause  ; 
and  it  is  quite  important  that  we  should  understand 
both  the  grounds  of  their  doubt,  and  the  grounds 
on  which  they  yielded  their  assent  to  this  part  of 
the  system.  South  Carolina  was  then,  and  was  ever 
likely  to  be,  a great  exporting  State.  Some  of  her 
people  feared  that,  if  a full  power  to  regulate  com- 
merce by  the  votes  of  a majority  in  the  two  houses 
of  Congress  were  to  be  exercised  in  the  passage  of  a 
navigation  act,  the  Eastern  States,  in  whose  behalf 
they  were  asked  to  grant  such  a power,  would  not  be 
able  to  furnish  shipping  enough  to  export  the  pro- 
ducts of  the  planting  States.  This  apprehension 
arose  entirely  from  a want  of  information;  which 
some  of  the  friends  of  the  Constitution  supplied, 
while  it  was  under  discussion.  They  showed  that,  if 
all  the  exported  products  of  Virginia,  the  Carolinas, 
and  Georgia  were  obliged  to  be  carried  in  American 
bottoms,  the  Eastern  States  were  then  able  to  fur- 


Ch.  II.] 


SOUTH  CAEOLINA. 


547 


nish  more  than  shipping  enough  for  the  purpose  ; 
and  that  this  shipping  must  also  compete  with  that 
of  the  Middle  States.  Still  it  remained  true,  that 
the  grant  of  the  commercial  power  would  enable  a 
majority  in  Congress  to  exclude  foreign  vessels  from 
the  carrying  trade  of  the  United  States,  and  so  far 
to  enhance  the  freights  on  the  products  of  South 
Carolina.  What  then  were  the  motives  which  ap- 
pear to  have  led  the  convention  of  that  State  to 
agree  to  this  concession  of  the  commercial  power  \ 

It  is  evident  from  the  discussions  which  took 
place  in  the  legislature,  and  which  had  great  influ- 
ence in  the  subsequent  convention,  that  the  attention 
of  the  people  of  South  Carolina  was  not  confined  to 
the  particular  terms  and  arrangements  of  the  com- 
promises which  took  place  in  the  formation  of  the 
Constitution.  They  looked  to  the  propriety,  expe- 
diency, and  justice  of  a general  power  to  regulate 
commerce,  apart  from  the  compromise  in  which  it 
was  involved.  They  admitted  the  commercial  dis- 
tresses of  the  Northern  States;  they  saw  the  policy 
of  increasing  the  maritime  strength  of  those  States, 
in  order  to  encourage  the  growth  of  a navy;  and 
they  considered  it  neither  prudent,  nor  fit,  to  give 
the  vessels  of  all  foreign  nations  a right  to  enter 
American  ports  at  pleasure,  in  peace  and  in  war, 
and  whatever  might  be  the  commercial  legislation 
of  those  nations  towards  the  United  States.  For 
these  reasons,  a large  majority  of  the  people  of 
South  Carolina  were  willing  to  make  so  much  sac- 
rifice, be  it  more  or  less,  as  was  involved  in  the  sur- 


548 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


render  to  a majority  in  Congress  of  the  power  to 
regulate  commerce.1 

Still,  the  Constitution  was  not  ratified  without  a 
good  deal  of  opposition  on  the  part  of  a considerable 
minority.  As  the  convention  drew  towards  the  close 
of  its  proceedings,  an  effort  was  made  to  carry  an 
adjournment  to  the  following  autumn,  in  order  to 
gain  time  for  the  anticipated  rejection  of  the  Consti- 
tution by  Virginia.  This  motion  probably  stimulat- 
ed the  convention  to  act  more  decisively  than  they 
might  otherwise  have  done,  for  it  touched  the  pride 
of  the  State  in  the  wrong  direction.  After  a spirited 
discussion  it  was  rejected  by  a majority  of  forty-six 
votes,  and  the  Constitution  was  thereupon  ratified  by 
a majority  of  seventy-six.  Several  amendments  were 
then  adopted,  to  be  presented  to  Congress  for  consid- 
eration, three  of  which  were  substantially  the  same 
with  three  of  those  proposed  by  Massachusetts.9 

On  the  27th  of  May,  there  was  a great  procession 
of  the  trades,  in  Charleston,  in  honor  of  the  accession 
of  the  State,  in  which  the  ship  Federalist,  drawn  by 
eight  white  horses,  was  a conspicuous  object,  as  it 
had  been  in  the  processions  of  other  cities. 

1 See  the  course  of  argument  of  2 * * * See  the  Amendments,  Journals 

Edward  Rutledge,  General  Pinck-  of  the  Old  Congress,  Vol.  XIII., 

ney,  Robert  Barnwell,  Commodore  Appendix. 

Gillon,  and  others,  as  given  in  El- 

liot, IV.  253-316. 


CHAPTER  III. 


Ratifications  of  New  Hampshire,  Virginia,  and  New  York, 
with  Proposed  Amendments. 

South  Carolina  was  the  eighth  State  that  had 
ratified  the  Constitution,  and  one  other  only  was  re- 
quired for  its  inauguration.  In  this  posture  of  af- 
fairs the  month  of  May  in  the  year  1788  was  closed. 
An  intense  interest  was  to  be  concentrated  into  the 
next  two  months,  which  were  to  decide  the  question 
whether  the  Constitution  was  ever  to  be  put  into 
operation.  The  convention  of  Virginia  was  to  meet 
on  the  2d,  and  that  of  New  York  on  the  17th,  of 
June ; the  convention  of  New  Hampshire  stood  ad- 
journed to  the  18th  of  the  same  month.  The  latter 
assembly  was  to  meet  at  Concord,  from  which 
place  intelligence  would  reach  the  Middle  and  South- 
ern States  through  Boston  and  the  city  of  New  York. 
The  town  of  Poughkeepsie,  where  the  convention  of 
New  York  was  to  sit,  lay  about  midway  between  the 
cities  of  Albany  and  New  York,  on  the  east  bank  of 
the  Hudson.  The  land  route  from  the  city  of  New 
York  to  Richmond,  where  the  convention  of  Virginia 
was  to  meet,  was  of  course  through  the  city  of  Phil- 
adelphia. The  distance  from  Concord  to  Pough- 


550 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


keepsie,  through.  Boston,  Springfield,  and  Hudson, 
was  about  two  hundred  and  fifty  miles.  The  dis- 
tance from  Poughkeepsie  to  Richmond,  through  the 
cities  of  New  York,  Philadelphia,  and  Baltimore, 
was  about  four  hundred  and  fifty  miles.  The  pub- 
lic mails,  over  any  part  of  these  distances,  were  not 
carried  at  a rate  of  more  than  fifty  miles  for  each 
day,  and  over  a large  .part  of  them  they  could  not 
have  been  carried  so  fast.  The  information  needed 
at  such  a crisis  could  not  wait  the  slow  progress  of 
the  public  conveyances. 

No  one  could  tell  how  long  the  conventions  of 
New  York  and  Virginia  might  be  occupied  with  the 
momentous  question  that  was  to  come  before  them. 
It  was  evident,  however,  that  there  was  to  be  a great 
struggle  in  both  of  them,  and  it  was  extremely  im- 
portant that  intelligence  of  the  final  action  of  New 
Hampshire  should  be  received  in  both  at  the  earliest 
practicable  moment.  For,  whatever  might  be  the 
weight  due  to  the  example  of  New  Hampshire  un- 
der other  circumstances,  if,  before  the  conventions  of 
New  York  and  Virginia  had  decided,  it  should  ap- 
pear that  nine  States  had  ratified  the  Constitution, 
the  course  of  those  bodies  might  he  materially  influ- 
enced by  a fact  of  so  much  consequence  to  the  fu- 
ture position  of  the  Union,  and  to  the  relations  in 
which  those  two  States  were  to  stand  to  the  new 
government.  It  was  equally  important,  too,  that 
whatever  might  occur  in  the  conventions  of  New 
York  and  Virginia  should  be  known  respectively 
in  each  of  them,  as  speedily  as  possible.  About 


Ch.  m.] 


VIRGINIA. 


551 


the  middle  of  May,  therefore,  Hamilton  arranged 
with  Madison  for  the  transmission  of  letters  between 
Richmond  and  Poughkeepsie,  by  horse  expresses ; 
and  by  the  12th  of  June  he  had  made  a similar  ar- 
rangement with  Rufus  King,  General  Knox,  and 
other  Federalists  at  the  East,  for  the  conveyance 
from  Concord  to  Poughkeepsie  of  intelligence 
concerning  the  result  in  New  Hampshire. 

A very  full  convention  of  delegates  of  the  people 
of  Virginia  assembled  at  Richmond  on  the  2d  of 
June,  embracing  nearly  all  the  most  eminent  public 
men  of  the  State,  except  "Washington  and  Jefferson. 
All  parties  felt  the  weight  of  responsibility  resting 
upon  the  State.  Every  State  that  had  hitherto  acted 
finally  on  the  subject  had  ratified  the  Constitution ; 
in  three  of  them  it  had  been  adopted  unanimously ; 
in  several  of  the  others  it  had  been  sanctioned  by 
large  majorities ; and  in  those  in  which  amendments 
had  been  proposed,  they  had  not  been  made  condi- 
tions precedent  to  the  adoption.  So  far,  therefore, 
as  the  voice  of  any  State  had  pronounced  the  Con- 
stitution defective,  or  dangerous  to  any  general  or 
particular  interest,  the  mode  of  amendment  provided 
by  it,  to  be  employed  after  it  had  gone  into  opera- 
tion, had  been  relied  upon  as  sufficient  and  safe. 
The  opposition  in  Virginia  were  consequently  re- 
duced to  this  dilemma ; — they  must  either  take  the 
responsibility  of  rejecting  the  Constitution  entirely, 
or  they  must  assume  the  equally  hazardous  respon- 
sibility of  insisting  that  the  ratification  of  the  State 
should  be  given  only  upon  the  condition  of  previous 


552 


ADOPTION  OP  THE  CONSTITUTION.  [Book  V. 


amendments.  They  were  prepared  to  do  both,  or 
either,  according  to  the  prospects  of  success ; for 
their  convictions  were  fixed  against  the  system  pro- 
posed ; their  abilities,  patriotism,  courage,  and  per- 
sonal influence  were  of  a high  order ; and  their  devo- 
tion to  what  they  deemed  the  interests  of  Virginia 
was  unquestionable. 

They  were  led,  as  I have  already  said  they  were 
to  be,  by  Patrick  Henry,  whose  reputation  had  suf- 
fered no  abatement  since  the  period  when  he  blazed 
into  the  darkened  skies  of  the  Revolution,  — when 
his  untutored  eloquence  electrified  the  heart  of  Vir- 
ginia, and  became,  as  has  been  well  said,  even  “ a 
cause  of  the  national  independence.”  1 He  had  held 
the  highest  honors  of  the  State,  but  had  retired,  poor, 
and  worn  down  by  twenty  years  of  public  service,  to 
rescue  his  private  affairs  by  the  practice  of  a profes- 
sion which,  in  some  of  its  duties,  he  did  not  love, 
and  for  which  he  had,  perhaps,  a single  qualification 
in  his  amazing  oratorical  powers.  His  popularity 
in  Virginia  was  unbounded.  It  was  the  popularity 
that  attends  genius,  when  thrown  with  heart  and 
soul,  and  with  every  impulse  of  its  being,  into  the 
cause  of  popular  freedom ; and  it  was  a popularity 
in  which  reverence  for  the  stem  independence  and 
the  self-sacrificing  spirit  of  the  patriot  was  mingled 
with  admiration  for  the  splendid  gifts  of  oratory 

1 Notice  of  Henry,  in  the  Na-  greater  than  that  of  any  man  he 
tional  Portrait  Gallery  of  Distin-  had  ever  heard,  and  that  Henry 
guished  Americans,  Vol.  II.  Mr.  “ appeared  to  speak  as  Homer 
Jefferson  has  said  that  Henry’s  wrote.”  (Jefferson’s  Works,  I. 
power  as  a popular  orator  was  4.) 


Ch.  III.] 


VIRGINIA. 


553 


which  Nature,  and  Nature  alone,  had  bestowed  up- 
on him.  But  Mr.  Henry  Avas  rightly  appreciated  by 
his  contemporaries.  They  knew  that,  though  a Avise 
man,  his  Avisdom  lacked  comprehensiveness,  and  that 
the  mere  intensity  Avith  Avhich  he  regarded  the  ends 
of  public  liberty  Avas  likely  to  mislead  his  judgment 
as  to  the  means  by  which  it  Avas  to  be  secured  and 
upheld  The  chief  apprehension  of  his  opponents, 
on  this  important  occasion,  Avas  lest  the  power  of  his 
eloquence  over  the  feelings  or  prejudices  of  his  audi- 
tory might  lead  the  sober  reflections  of  men  astray. 

He  Avas  at  this  time  fifty-tAvo  years  of  age.  Al- 
though feeling  or  affecting  to  feel  himself  an  old 
and  broken  man,  he  Avas  yet  undoubtedly  master  of 
all  his  natural  poAvers.  Those  poAvers  he  exerted  to 
the  utmost,  to  defeat  the  Constitution  in  the  conven- 
tion of  Virginia.  He  employed  every  art  of  his 
peculiar  rhetoric,  every  resource  of  invective,  of 
sarcasm,  of  appeal  to  the  fears  of  his  audience  for 
liberty ; every  dictate  of  local  prejudice  and  State 
pride.  But  he  employed  them  all  Avith  the  most 
sincere  conviction  that  the  adoption  of  the  proposed 
Constitution  would  be  a Avrong  and  dangerous  step. 
Nor  is  it  surprising  that  he  should  have  so  regarded 
it.  He  had  formed  to  himself  an  ideal  image  Avhich 
he  Avas  fond  of  describing  as  the  American  spirit. 
This  national  spirit  of  liberty,  erring  perhaps  at 
times,  but  in  the  main  true  to  right  and  justice  as 
Avell  as  to  freedom,  Avas  with  him  a kind  of  guardian 
angel  of  the  republic.  He  seems  to  have  considered 
it  able  to  correct  its  own  errors  Avithout  the  aid  of 


VOL.  II. 


70 


554 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


any  powerful  system  of  general  government,  — ca- 
pable of  accomplishing  in  peace  all  that  it  had  un- 
questionably effected  for  the  country  in  war.  As 
he  passed  out  of  the  troubles  and  triumphs  of  the 
Revolution  into  the  calmer  atmosphere  of  the  Con- 
federation, his  reliance  on  this  American  spirit,  and 
his  jealousy  for  the  maxims  of  public  liberty,  led 
him  to  regard  that  system  as  perfect,  because  it  had 
no  direct  legislative  authority.  He  could  not  endure 
the  thought  of  a government,  external  to  that  of 
Virginia,  and  yet  possessed  of  the  power  of  direct 
taxation  over  the  people  of  the  State.  He  regarded 
with  utter  abhorrence  the  idea  of  laws  binding  the 
people  of  Virginia  by  the  authority  of  the  people  of 
the  United  States ; and  thinking  that  he  saw  in  the 
Constitution  a purely  national  and  consolidated  gov- 
ernment, and  refusing  to  see  the  federal  principle 
which  its  advocates  declared  was  incorporated  in  its 
system  of  representation,  he  shut  his  eyes  resolutely 
upon  all  the  evils  and  defects  of  the  Confederation, 
and  denounced  the  new  plan  as  a monstrous  depart- 
ure from  the  only  safe  construction  of  a Union. 
He  belonged,  too,  to  that  school  of  public  men  — 
some  of  whose  principles  in  this  respect  it  is  vain  to 
question  — who  considered  a Bill  of  Rights  essential 
in  every  republican  government  that  is  clothed  with 
powers  of  direct  legislation. 

On  the  first  day  of  the  session,  at  the  instance  of 
Mr.  Mason,  the  convention  determined  not  to  take  a 
vote  upon  any  question  until  the  whole  Constitution 
had  been  debated  by  paragraphs ; but  the  discussions 


Cxi.  III.] 


VIRGINIA. 


555 


in  fact  ranged  over  the  whole  instrument  without 
any  restriction.  The  opposition  was  opened  by 
Henry,  in  a powerful  speech  of  a general  nature,  in 
which  he  demanded  the  reasons  for  such  a radical 
change  in  the  character  of  the  general  government. 
That  the  new  plan  was  a consolidated  government, 
and  not  a confederacy,  he  held  to  be  indisputable. 
The  language  of  the  preamble,  which  said  We,  the 
People , and  not  We,  the  States,  made  this  perfectly 
clear.  But  States  were  the  characteristics  and  the 
soul  of  a confederation.  If  States  were  not  to  be  the 
agents  of  this  new  compact,  it  must  be  one  great, 
consolidated,  national  government  of  the  people  of 
all  the  States.  This  perilous  innovation,  altogether 
beyond  the  powers  of  the  Convention  which  had 
proposed  it,  had  given  rise  to  differences  of  opinion 
which  had  gone  to  inflammatory  resentments  in  dif- 
ferent parts  of  the  country.  He  denied  altogether 
the  existence  of  any  necessity  for  exposing  the  pub- 
lic peace  to  such  a hazard. 

As  soon  as  Henry  had  sat  down,  the  Governor, 
Edmund  Randolph,  rose,  to  place  himself  in  a posi- 
tion of  some  apparent  inconsistency.  He  had,  as 
we  have  seen,  refused  to  sign  the  Constitution.  On 
his  return  to  Virginia,  he  had  addressed  a long,  ex- 
culpatory letter  to  the  Speaker  of  the  House  of  Del- 
egates, giving  his  reasons  for  this  refusal;  which 
were,  in  substance,  that  he  considered  the  Constitu- 
tion required  important  amendments,  and  that,  as  it 
would  go  to  the  conventions  of  the  States  to  be  ac- 
cepted or  rejected  as  a whole,  without  power  to 


556 


ADOPTION  OP  THE  CONSTITUTION.  [Book  V. 


amend,  he  thought  that  his  signature  Avould  pre- 
clude him  from  proposing  the  changes  and  additions 
which  he  deemed  essential.  This  letter  had  attract- 
ed much  attention  both  in  and  out  of  Virginia,  and 
Randolph  was  consequently,  up  to  this  moment,  re- 
garded as  a firm  opponent  of  the  Constitution.  He 
chose,  however,  to  incur  the  charge  of  that  kind  of 
inconsistency  which  a statesman  should  never  hesi- 
tate to  commit,  when  he  finds  that  the  public  good 
is  no  longer  consistent  with  his  adherence  to  a for- 
mer opinion.  He  declared  that  the  day  of  previous 
amendments  had  passed.  The  ratification  of  the 
Constitution  by  eight  States  had  placed  Virginia  and 
the  country  in  a critical  position.  If  the  Constitu- 
tion should  not  be  adopted  by  the  number  of  States 
required  to  put  it  into  operation,  there  could  be  no 
Union ; and  if  it  were  to  be  ratified  by  that  number, 
and  Virginia  Avere  to  reject  it,  she  Avould  have  at 
least  two  States  at  the  south  of  her  Avhich  Avould 
belong  to  a confederacy  of  Avhich  she  Avould  not  be 
a member.  He  should,  therefore,  vote  for  the  un- 
conditional adoption  of  the  Constitution,  looking 
to  future  amendments,  although  he  had  little  expec- 
tation that  they  Avould  be  made. 

This  announcement  took  the  opposition  by  sur- 
prise. But  they  relaxed  none  of  their  efforts.  They 
subjected  eA’ery  part  of  the  Constitution  to  a rigid 
scrutiny,  and  to  the  most  subtle  course  of  reasoning, 
as  Avell  as  to  one  Avhich  addressed  the  prejudices  of 
the  common  mind.  Some  of  the  most  important 
only  of  the  topics  on  Avhich  they  enlarged  can  be 
noticed  here. 


Ch.  III.] 


VIRGINIA. 


557 


Their  first  and  chief  object  was  to  show  that  the 
Constitution  presented  a national  and  consolidated 
government,  in  the  place  of  the  Confederation,  and 
that  under  such  a government  the  liberties  of  the 
people  of  the  States  could  not  be  secure.  This  char- 
acter of  the  proposed  government  Mr.  Mason  de- 
duced from  the  power  of  direct  taxation,  which,  he 
contended,  entirely  changed  the  confederacy  into  one 
consolidated  government.  This  power,  being  at  dis- 
cretion and  unrestrained,  must  carry  everything  be- 
fore it.  The  general  government  being  paramount 
to,  and  in  every  respect  more  powerful  than,  the 
State  governments,  the  latter  must  give  way;  for 
two  concurrent  powers  of  direct  taxation  cannot  long 
exist  together.  Assuming  that  taxes  were  to  be 
levied  for  the  use  of  the  general  government,  the 
mode  in  which  they  were  to  be  assessed  and  collected 
was  of  the  utmost  consequence,  and  it  ought  not  to 
be  surrendered  by  the  people  of  Virginia  to  those 
who  had  neither  a knowledge  of  their  situation  nor 
a common  interest  with  them.  He  would  cheerfully 
acquiesce  in  giving  an  effectual  alternative  for  the 
power  of  direct  taxation.  He  would  give  the  gen- 
eral government  power  to  demand  their  quotas  of 
the  States,  with  an  alternative  of  laying  direct  taxes 
in  case  of  non-compliance.  The  certainty  of  this 
conditional  power  would,  in  all  probability,  prevent 
the  application  of  it,  and  the  sums  necessary  for  the 
Union  would  then  be  raised  by  the  States,  and  by 
those  who  would  best  know  how  they  could  be  raised. 

Mr.  Henry  took  a broader  ground.  He  argued 


558 


ADOPTION  OP  THE  CONSTITUTION.  [Book  V. 


that  the  Constitution  presented  a consolidated  gov- 
ernment, because  it  spoke  in  the  name  of  the  People, 
and  not  in  the  name  of  the  States.  It  was  neither  a 
monarchy  like  England,  — a compact  between  prince 
and  people,  with  checks  on  the  former  to  secure  the 
liberty  of  the  latter ; nor  a confederacy  like  Holland, 
— an  association  of  independent  States,  each  retain- 
ing its  individual  sovereignty ; nor  yet  a democracy, 
in  which  the  people  retain  securely  all  their  rights. 
It  was  an  alarming  transition  from  a confederacy  to 
a consolidated  government.  It  was  a step  as  radi- 
cal as  that  which  separated  us  from  Great  Britain. 
The  rights  of  conscience,  trial  by  jury,  liberty  of  the 
press,  all  immunities  and  franchises,  all  pretensions 
to  human  rights  and  privileges,  were  rendered  inse- 
cure, if  not  lost,  by  such  a transition.  It  was  said 
that  eight  States  had  adopted  it.  He  declared  that, 
if  twelve  States  and  a half  had  adopted  it,  he  would, 
with  manly  firmness,  and  in  spite  of  an  erring  world, 
reject  it.  “You  are  not  to  inquire,”  said  he,  “how 
your  trade  may  be  increased,  or  how  you  are  to  be- 
come a great  and  prosperous  people,  but  how  your 
liberties  may  he  secured  ” ; — and  then,  kindling  with 
the  old  fire  of  his  earlier  days,  and  with  the  recol- 
lection of  what  he  had  done  and  suffered  for  the  lib- 
erties of  his  country,  he  broke  forth  in  one  of  his 
most  indignant  and  impassioned  moods.1 

Madison,  always  cool,  clear,  and  sensible,  answered 

1 It  is  said  in  the  newspapers  of  from  which  I have  made  the  ab- 
that  period  that  Henry  was  on  his  stract  in  the  text.  But  he  made  a 
legs  in  one  speech  for  seven  hours.  great  many  speeches,  quite  as  ear- 
I think  it  must  have  been  the  one  nest. 


Ch.  III.] 


VIRGINIA. 


559 


these  objections.  He  described  the  new  government 
as  having  a mixed  character.  It  would  be  in  some 
respects  federal,  in  others  consolidated.  The  man- 
ner in  which  it  was  to  be  ratified  established  this 
double  character.  The  parties  to  it  were  to  be  the 
people,  but  not  the  people  as  composing  one  great 
society,  but  the  people  as  composing  thirteen  sover- 
eignties. If  it  were  a purely  consolidated  govern- 
ment, the  assent  of  a majority  of  the  people  would 
be  sufficient  to  establish  it.  But  it  was  to  be  bind- 
ing on  the  people  of  a State  only  by  their  own  sepa- 
rate consent ; and  if  adopted  by  the  people  of  all  the 
States,  it  would  be  a government  established,  not 
through  the  intervention  of  their  legislatures,  but  by 
the  people  at  large.  In  this  respect,  the  distinction 
between  the  existing  and  the  proposed  governments 
was  very  material. 

The  mode  in  which  the  Constitution  was  to  be 
amended  also  displayed  its  mixed  character.  A ma- 
jority of  the  States  could  not  introduce  amendments, 
nor  yet  were  all  the  States  required ; three  fourths 
of  them  must  concur  in  alterations ; and  this  consti- 
tuted a departure  from  the  federal  idea.  Again,  the 
members  of  one  branch  of  the  legislature  were  to  be 
chosen  by  the  people  of  the  States  in  proportion  to 
their  numbers ; the  members  of  the  other  were  to  be 
elected  by  the  States  in  their  equal  and  political  ca- 
pacities. Had  the  government  been  completely  con- 
solidated, the  Senate  would  have  been  chosen  in  the 
same  way  as  the  House;  had  it  been  completely 
federal,  the  House  would  have  been  chosen  in  the 


560 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


same  way  as  the  Senate.  Thus  it  was  of  a complex 
nature ; and  this  complexity  would  be  found  to  ex- 
clude the  evils  of  absolute  consolidation  and  the 
evils  of  a mere  confederacy.  Finally,  if  Virginia 
were  separated  from  all  the  States,  her  power  and 
authority  Avould  extend  to  all  cases  ; in  like  manner, 
were  all  powers  vested  in  the  general  government,  it 
would  be  a consolidated  government ; but  the  pow- 
ers of  the  general  government  are  enumerated;  it 
can  only  operate  in  certain  cases ; it  has  legislative 
powers  on  defined  and  limited  objects,  beyond  which 
it  cannot  extend  its  jurisdiction. 

With  respect  to  the  powers  proposed  to  be  con- 
ferred on  the  new  government,  he  conceived  that  the 
question  was  whether  they  were  necessary.  If  they 
were,  Virginia  was  reduced  to  the  dilemma  of  either 
submitting  to  the  inconvenience  which  the  surrender 
of  those  powers  might  occasion,  or  of  losing  the 
Union.  He  then  proceeded  to  show  the  necessity  for 
the  power  of  direct  taxation ; and  in  answer  to  the 
apprehended  danger  arising  from  this  power  united 
with  the  consolidated  nature  of  the  government,  — 
thus  giving  it  a tendency  to  destroy  all  subordinate 
or  separate  authority  of  the  States,  — he  admitted 
that,  if  the  general  government  were  wholly  inde- 
pendent of  the  governments  of  the  States,  usurpation 
might  be  expected  to  the  fullest  extent ; but  as  it 
wras  not  so  independent,  but  derived  its  authority 
partly  from  those  governments,  and  partly  from  the 
people,  — the  same  source  of  power,  — there  was  no 
danger  that  it  would  destroy  the  State  governments. 


Ch.  III.] 


VIRGINIA. 


561 


In  this  manner,  extending  to  all  the  details  of  the 
Constitution,  the  discussion  proceeded  for  nearly  a 
week,  the  opposition  aiming  to  show  that  at  every 
point  it  exposed  the  liberties  of  the  people  to  great 
hazards ; Henry  sustaining  nearly  the  whole  burden 
of  the  argument  on  that  side,  and  fighting  with  great 
vigor  against  great  odds.1  At  length,  finding  him- 
self sorely  pressed,  he  took  advantage  of  an  allusion 
made  by  his  opponents  to  the  debts  due  from  the 
United  States  to  France,  to  introduce  the  name  of 
Jefferson. 


“ I might,”  said  he,  “ not  from  public  authority, 
but  from  good  information,  tell  you  that  his  opinion 
is  that  you  reject  this  government.  His  character 
and  abilities  are  in  the  highest  estimation ; he  is 
well  acquainted  in  every  respect  with  this  country  ; 
equally  so  with  the  policy  of  the  European  nations. 
This  illustrious  citizen  advises  you  to  reject  this 
government  till  it  be  amended.  His  sentiments 
coincide  entirely  with  ours.  His  attachment  to,  and 
services  done  for,  this  country  are  well  known.  At 
a great  distance  from  us,  he  remembers  and  studies 
our  happiness.  Living  in  splendor  and  dissipation, 
he  thinks  yet  of  Bills  of  Rights,  — thinks  of  those 
little,  despised  things  called  maxims.  Let  us  follow 


1 There  has  been,  I am  aware, 
a modern  scepticism  concerning 
Patrick  Henry’s  abilities ; but  I 
cannot  share  it.  He  was  not  a 
man  of  much  information,  and  he 
had  no  great  breadth  of  mind.  But 
he  must  have  been,  not  only  a very 
able  debater,  but  a good  parlia- 
71 


mentary  tactician.  The  manner 
in  which  he  carried  on  the  opposi- 
tion to  the  Constitution  in  the  con- 
vention of  Virginia,  for  nearly  a 
whole  month,  shows  that  he  pos- 
sessed other  powers  besides  those 
of  great  natural  eloquence-. 


VOL.  II. 


562 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


the  sage  advice  of  this  common  friend  of  our  hap- 
piness.” 1 

At  the  time  when  Mr.  Henry  made  this  statement, 
he  had  seen  a letter  written  by  Mr.  Jefferson  from 
Paris,  in  the  preceding  February,  which  was  much 
circulated  among  the  opposition  in  Virginia,  and  in 
which  Mr.  Jefferson  had  expressed  the  hope  that 
the  first  nine  conventions  might  accept  the  Constitu- 
tion, and  the  remaining  four  might  refuse  it,  until  a 
Declaration  of  Rights  had  been  annexed  to  it.2  Mr. 
Henry  chose  to  construe  this  into  an  advice  to  Vir- 
ginia to  reject  the  Constitution.  But  this  use  of 
Mr.  Jefferson’s  opinion  was  not  strictly  justifiable, 
since  Virginia,  in  the  actual  order  of  events,  might 
be  the  ninth  State  to  act;  for  the  convention  of 
New  Hampshire  was  not  to  reassemble  until  nearly 
three  weeks  after  the  first  meeting  of  that  of  Vir- 
ginia, in  which  Mr.  Henry  was  then  speaking.  The 


1 Elliot,  III.  152,  Debates  in  the 
Virginia  Convention. 

2 Under  date  of  February  7, 
1788,  Mr.  Jefferson  wrote  from 
Paris,  in  a private  letter  to  a gen- 
tleman in  Virginia,  as  follows : — “I 
wish,  with  all  my  soul,  that  the  nine 
first  conventions  may  accept  the 
new  Constitution,  because  this  will 
secure  to  us  the  good  it  contains, 
which  I think  great  and  important. 
But  I equally  wish  that  the  four 
latest  conventions,  whichever  they 
be,  may  refuse  to  accede  to  it  till  a 
Declaration  of  Rights  be  annexed. 
This  would  probably  command  the 
offer  of  such  a Declaration,  and  thus 
give  to  the  whole  fabric,  perhaps,  as 


much  perfection  as  any  one  of  that 
kind  ever  had.  By  a Declaration 
of  Rights,  I mean  one  which  shall 
stipulate  freedom  of  religion,  free- 
dom of  the  press,  freedom  of  com- 
merce against  monopolies,  trial  by 
juries  in  all  cases,  no  suspensions  of 
the  habeas  corpus,  no  standing  ar- 
mies. These  are  fetters  against 
doing  evil,  which  no  honest  gov- 
ernment should  decline.  There  is 
another  strong  feature  in  the  new 
Constitution  which  I as  strongly 
dislike.  That  is,  the  perpetual  re- 
eligibility of  the  President.  Of 
this,  I expect  no  amendment  at 
present,  because  I do  not  see  that 
anybody  has  objected  to  it  on  your 


ch.  m.] 


VIRGINIA. 


563 


friends  of  the  Constitution,  therefore,  became  some- 
what restive  under  this  attempt  to  employ  the  influ- 
ence of  Jefferson  against  them.  Without  saying 
anything  disrespectful  of  him,  but,  on  the  contrary, 
speaking  of  him  in  the  highest  terms  of  praise  and 
honor,  they  complained  of  the  impropriety  of  intro- 
ducing his  opinion,  — saying  that,  if  the  opinions  of 
important  men  not  within  that  convention  were  to 
govern  its  deliberations,  they  could  adduce  a name 
at  least  equally  great  on  their  side ; 1 and  they  then 
contended  that  Mr.  Jefferson’s  letter  did  not  admit 


of  the  application  that  had  been  given  to  it.2  But 
the  truth  was,  that  the  assertions  of  his  opponents 
respecting  New  Hampshire,  and  the  ambiguous  form 
of  Mr.  Jefferson’s  opinion,  gave  Henry  all  the  oppor- 
tunity he  wanted  to  employ  that  opinion  for  the 
purpose  for  which  he  introduced  it.  “ You  say,” 


said  he,  “ that  you  are 

side  the  water.  But  it  will  be 
productive  of  cruel  distress  to  our 
country,  even  in  your  day  and 
mine.  The  importance  to  France 
and  England  to  have  our  govern- 
ment in  the  hands  of  a friend  or 
foe,  will  occasion  their  interference 
by  money,  and  even  by  arms.  Our 
President  will  be  of  much  more 
consequence  to  them  than  a king 
of  Poland.  We  must  take  care, 
however,  that  neither  this  nor  any 
other  objection  to  the  new  form 
produces  a schism  in  our  Union. 
That  would  be  an  incurable  evil, 
because  near  friends  falling  out 
never  reunite  cordially;  whereas, 
all  of  us  going  together,  we  shall  be 


absolutely  certain  New 

sure  to  cure  the  evils  of  our  new 
Constitution  before  they  do  great 
harm.”  (Jefferson’s  Works,  II. 
355.)  That  Mr.  Jefferson  intend- 
ed this  letter  should  be  used  as  it 
was  in  the  convention  of  Virginia, 
is  not  probable ; but  it  would  seem 
from  the  care  he  took  to  state  a 
plan  of  proceeding  in  the  adoption 
of  the  Constitution,  that  he  intend- 
ed his  suggestions  should  be  known. 
His  subsequent  opinion  will  be 
found  in  a note  below. 

1 Alluding,  evidently,  to  Wash- 
ington. 

2 See  the  speeches  of  Pendleton 
and  Madison,  in  reply  to  Henry. 
Elliot,  IH.  304,  329. 


564 


ADOPTION  OF  THE  CONSTITUTION.  [Book  Y. 


Hampshire  will  adopt  this  government.  Then  she 
will  be  the  ninth  State ; and  if  Mr.  Jefferson’s  advice 
is  of  any  value,  and  this  system  requires  amend- 
ments, we,  who  are  to  be  one  of  the  four  remaining 
States,  ought  to  reject  it  until  amendments  are  ob- 
tained.” 1 

Notwithstanding  the  efforts  of  Madison  to  coun- 
teract this  artifice,  it  gave  the  opposition  great 
strength,  because  it  enabled  them  to  throw  the  whole 
weight  of  their  arguments  against  the  alleged  de- 


fects and  dangers  of  the  Constitution  into  the  scale 
of  an  absolute  rejection.  Mr.  Jefferson’s  subse- 
quent opinion,  formed  after  he  had  received  intelli- 
gence of  the  course  of  Massachusetts,  had  not  then 
been  received,  and  indeed  did  not  reach  this  country 
until  after  the  convention  of  Virginia  had  acted.2 
The  opposition  went  on,  therefore,  with  renewed 
vigor,  to  attack  the  Constitution  in  every  part  which 
they  considered  vulnerable. 


1 Elliot,  in.  314. 

2 On  the  27th  of  May,  1788, 
Mr.  Jefferson  ■wrote  from  Paris  to 
Colonel  Carrington,  as  follows:  — 
‘ ‘ I learn  with  great  pleasure  the 
progress  of  the  new  Constitution. 
Indeed,  I have  presumed  it  would 
gain  on  the  public  mind,  as  I con- 
fess it  has  on  my  own.  At  first, 
though  I saw  that  the  great  mass 
and  groundwork  was  good,  I dis- 
liked many  appendages.  Reflection 
and  discussion  have  cleared  off  most 
of  those.  You  have  satisfied  me 
as  to  the  query  I had  put  to  you 
about  the  right  of  direct  taxation. 
My  first  wish  was  that  nine  States 


would  adopt  it,  and  that  the  others 
might,  by  holding  off,  produce  the 
necessary  amendments.  But  the 
plan  of  Massachusetts  is  far  prefer- 
able, and  will,  I hope,  be  followed 
by  those  who  are  yet  to  decide,” 
&c.  (Jefferson’s  Works,  II.  404.) 
Colonel  Carrington,  the  person  to 
whom  this  letter  was  addressed, 
was  a member  of  Congress,  and 
received  it  at  New  York,  about 
the  2d  of  July,  when  it  was  seen 
by  Madison.  (See  a letter  from 
Madison  to  E.  Randolph  of  that 
date,  among  the  Madison  papers. 
Elliot,  Y.  573.) 


Ch.  III.] 


VIRGINIA. 


565 


Among  the  topics  on  which  they  expended  a great 
deal  of  force  was  that  of  the  navigation  of  the  Mis- 
sissippi. They  employed  this  subject  for  the  pur- 
pose of  influencing  the  votes  of  members  who  rep- 
resented the  interests  of  that  part  of  Virginia  which 
is  now  Kentucky.  They  first  extorted  from  Madison 
and  other  gentlemen,  who  had  been  in  the  Congress 
of  the  Confederation,  a statement  of  the  negotiations 
which  had  nearly  resulted  in  a temporary  surrender 
of  the  right  in  the  Mississippi  to  Spain.1  They  then 
made  use  of  the  following  argument.  It  had  ap- 
peared, they  said,  from  those  transactions,  that  the 
Northern  and  Middle  States,  seven  in  number,2  were 
in  favor  of  bartering  away  this  great  interest  for 
commercial  privileges  and  advantages ; that  those 
States,  particularly  the  Eastern  ones,  would  be  in- 
fluenced further  by  a desire  to  supress  the  growth 
of  new  States  in  the  Western  country,  and  to  pre- 
vent the  emigration  of  their  own  people  thither,  as  a 
means  of  retaining  the  power  of  governing  the  Union; 
and  that  the  surrender  of  the  Mississippi  could  be 
made  by  treaty,  under  the  Constitution,  by  the  will 
of  the  President  and  the  votes  of  ten  Senators,3 
whereas,  under  the  Confederation,  it  never  could 
be  done  without  the  votes  of  nine  States  in  Con- 
gress. 

1 See  an  account  of  this  matter,  posed  to  be  "with  the  four  Southern 
ante , Vol.  I.  Book  III.  Chap.  V.  States  on  this  question. 

pp.  309-327.  3 Ten  would  be  two  thirds  of 

2 They  meant  the  four  New  the  constitutional  quorum  of  four- 
England  States  and  New  York,  teen;  so  that  the  argument  sup- 
Pennsylvania,  and  Maryland.  New  posed  only  a quorum  to  be  pres- 
Jersey  and  Delaware  were  sup-  ent 


566 


ADOPTION  OF  THE  CONSTITUTION.  [Book.  V. 


It  must  be  allowed  that  there  had  been  much  in 
the  history  of  this  matter  on  which  harsh  reflections 
could  be  made  by  both  sections  of  the  Union.  But 
it  was  not  correct  to  represent  the  Eastern  and  Mid- 
dle States  as  animated  by  a desire  to  prevent  the 
settlement  of  the  Western  country,  or  to  say  that 
they  would  be  ready  at  any  time  to  barter  away  the 
right  in  the  Mississippi.  Seven  of  the  States  had 
consented,  in  a time  of  war  and  of  great  peril,  to  the 
proposal  of  a temporary  surrender  of  the  right  to 
Spain,  just  when  it  was  supposed  that  negotiations 
between  Spain  and  Great  Britain  might  result  in  a 
coalition  which  would  deprive  us  of  the  river  for 
ever,  and  when  it  was  thought  that  a temporary 
cession  would  fix  the  permanent  right  in  our  favor.1 
This  was  undoubtedly  an  error ; but  it  was  one  from 
which  the  country  had  been  saved,  by  the  disputes 
which  arose  respecting  the  constitutional  power  of 
seven  States  to  give  instructions  for  a treaty,  and 
by  the  prospect  of  a reconstruction  of  the  general 
government.2  Now,  therefore,  that  an  entirely  new 
constitutional  system  had  been  prepared,  the  real 
question,  in  relation  to  this  very  important  subject, 
was  one  of  a twofold  character.  It  involved,  first, 
the  moral  probabilities  respecting  the  wishes  and 
policy  of  a majority  of  the  States  ; and,  secondly,  a 
comparison  of  the  means  afforded  by  the  Constitu- 
tion for  protecting  the  national  right  to  the  Missis- 
sippi, with  those  afforded  by  the  Confederation,  — 

1 See  Mr.  Madison’s  explanation  2 Ante,  Book  HI.  Chap.  V., 
in  the  convention  of  Virginia.  El-  Vol.  I.  pp.  324-327. 
liot,  III.  346. 


Ch.  in.] 


VIRGINIA. 


567 


assuming  that  any  State  or  States  might  wish  to  sur- 
render it. 

Upon  this  question  Mr.  Madison  made  an  answer 
to  the  opposition,  which  shows  how  accurately  he 
foresaw  the  relations  between  the  western  and  the 
eastern  portions  of  the  Union,  and  how  justly  he  es- 
timated the  future  working  of  the  Constitution  with 
respect  to  the  preservation  of  the  Mississippi,  or  any 
other  national  right. 

If  interest  alone,  he  said,  were  to  govern  the 
Eastern  States,  they  must  derive  greater  ’ advantage 
from  holding  the  Mississippi  than  even  the  South- 
ern States ; for  if  the  carrying  trade  were  their  nat- 
ural province,  it  must  depend  mainly  on  agriculture 
for  its  support,  and  agriculture  was  to  be  the  great 
employment  of  the  Western  country.  But  in  addi- 
tion to  this  security  of  local  interest,  the  Constitu- 
tion would  make  it  necessary  for  two  thirds  of  all 
the  Senators  present  — and  those  present  would 
represent  all  the  States,  if  all  attended  to  their  duty 
— to  concur  in  every  treaty.  The  President,  who 
would  represent  the  people  at  large,  must  also  con- 
cur. In  the  House  of  Representatives,  the  landed, 
rather  than  the  commercial  interest,  would  predom- 
inate; and  the  House  of  Representatives,  although 
not  to  be  directly  concerned  in  the  making  of  trea- 
ties, would  have  an  important  influence  in  the  gov- 
ernment. A weak  system  had  produced  the  project 
of  surrendering  the  Mississippi ; a strong  one  would 
remove  the  inducement.1 


1 Debates  in  the  Virginia  Convention,  Elliot,  III.  344-347. 


568 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


In  the  midst  of  these  discussions,  and  while  the 
opposition  were  making  every  effort  to  protract  them 
until  the  23d  of  June,  — when  the  assembling  of 
the  legislature  would  afford  a colorable  pretext  for 
an  adjournment,  — Colonel  Oswald  of  Philadelphia 
arrived  at  Richmond,  with  letters  from  the  Anti- 
Federalists  of  New  York  and  Pennsylvania  to  the 
leaders  of  that  party  at  Richmond,  for  the  purpose 
of  concerting  a plan  for  the  postponement  of  the  de- 
cision of  Virginia  until  after  the  meeting  of  the  con- 
vention of  New  York.  It  was  supposed  that,  if  this 
could  be  effected,  the  opponents  of  the  Constitution 
in  New  York  would  be  able  to  make  some  overture 
to  the  opposition  in  Virginia,  for  the  same  course  of 
action  in  both  States.  If  this  could  not  be  brought 
about,  it  was  considered  by  the  opposition  at  Rich- 
mond that  the  chances  of  obtaining  a vote  for  pre- 
vious amendments  would  be  materially  increased  by 
delay.  The  parties  in  their  convention  were  nearly 
balanced,  at  this  time.  Mr.  Madison  estimated  the 
Federal  majority  at  not  more  than  three  or  four  votes, 
if  indeed  the  Federalists  had  a majority,  on  the  17th 
of  June,  the  day  on  which  the  convention  of  New 
York  was  to  meet.1 

But  we  must  now  leave  the  convention  of  Vir- 
ginia, and  turn  our  eyes  to  the  pleasant  village  on 
the  banks  of  the  Hudson,  where  the  convention  of 
New  York  was  already  assembling.  Hamilton  was 

1 He  thought  at  this  moment  Kentucky  were  then  generally  hos- 
that,  if  the  Constitution  should  be  tile.  (See  a letter  from  Madison 
lost,  the  Mississippi  question  would  to  Hamilton,  of  June  16th,  Ham- 
be  the  cause.  The  members  from  ilton’s  Works,  I.  457.) 


Ch.  III.] 


NEW  YORK. 


569 


there,  and  was  its  leading  spirit.  How  vigilant  and 
thoughtful  he  was,  we  know ; — sometimes  watching 
for  the  messenger  who  might  descend  the  eastern 
hills  with  reports  from  New  Hampshire,  — some- 
times turning  to  the  South  and  listening  for  the 
footfall  of  his  couriers  from  Virginia ; — but  always 
preparing  to  meet  difficulties,  always  ready  to  con- 
test every  inch  of  ground,  and  never  losing  sight  of 
the  great  end  to  be  accomplished.  The  hours  were 
slow  and  heavy  to  him.  The  lines  of  horse-expresses 
which  he  had  so  carefully  adjusted,  and  at  whose  in- 
tersection he  stood  to  collect  the  momentous  intelli- 
gence they  would  bring  him,  were  indeed  a marvel 
of  enterprise  at  that  day ; but  how  unlike  were  they 
to  the  metallic  lines  that  now  daily  gather  for  us, 
from  all  the  ends  of  the  land  and  with  the  speed  of 
lightning,  minute  notices  of  the  most  trivial  or  the 
most  important  events ! Still,  such  as  his  apparatus 
was,  it  was  all  that  could  be  had ; and  he  awaited, 
alike  with  a firm  patience  and  a faithful  hope,  for 
the  decisive  results.  Even  at  this  distance  of  time, 
we  share  the  fluctuations  of  his  anxious  spirit,  and 
our  patriotism  is  quickened  by  our  sympathy. 

Rarely,  indeed,  if  ever,  was  there  a statesman  hav- 
ing more  at  stake  in  what  he  could  not  personally 
control,  or  greater  cause  for  solicitude  concerning 
the  public  weal  of  his  own  times  or  that  of  future 
ages,  than  Hamilton  now  had.  His  own  prospects 
of  usefulness,  according  to  the  principles  which  had 
long  guided  him,  and  the  happiness  or  the  misery 
of  his  country,  were  all,  as  he  was  deeply  convinced, 


570  ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 

involved  in  what  might  happen  within  any  hour  of 
those  few  eventful  days.  The  rejection  of  the  Con- 
stitution by  Virginia  would,  in  all  probability,  cause 
its  rejection  by  New  York.  Its  rejection  by  those 
States  would,  as  he  sincerely  believed,  be  followed 
by  eventual  disunion  and  civil  war.  But  if  the 
Constitution  could  be  established,  he  could  see  the 
way  open  to  the  happiness  and  welfare  of  the  whole 
Union ; for  although  it  was  not  in  all  respects  the 
system  that  he  would  have  preferred,  he  had  shown, 
in  the  Federalist,  how  profoundly  he  understood  its 
bearing  upon  the  interests  of  the  country,  into  what 
harmony  he  could  bring  its  various  provisions,  and 
what  powerful  aid  he  could  give  in  adjusting  it  into 
its  delicate  relations  to  the  States.  He  had,  too,  al- 
ready conceived  the  hope  that  its  early  administra- 
tion might  be  undertaken  by  Washington;  and  with 
the  government  in  the  hands  of  Washington,  Ham- 
ilton could  foresee  the  success  which  to  us  is  now 
historical. 

To  say  that  Hamilton  was  ambitious,  is  to  say  that 
he  was  human ; and  he  was  by  no  means  free  from 
human  imperfections.  But  his  was  the  ambition  of 
a great  mind,  regulated  by  principle,  and  made  in- 
capable, by  the  force  and  nature  of  his  convictions, 
of  seeking  personal  aggrandizement  through  any 
course  of  public  policy  of  which  those  convictions 
were  not  the  mainspring  and  the  life.  In  no  degree 
is  the  character  of  any  other  American  statesman 
undervalued  or  disparaged,  when  I insist  on  the  im- 
portance to  all  America,  through  all  time,  of  Hamil- 


Ch..  HI  ] 


NEW_YOEK. 


571 


ton’s  public  character  and  conduct  in  this  respect. 
It  was  because  his  future  opportunities  for  personal 
distinction  and  usefulness  were  now  evidently  at 
stake  in  the  success  of  a system  that  would  admit 
of  the  exercise  of  his  great  powers  in  the  service  of 
the  country,  — a system  that  would  afford  at  once  a 
field  for  their  exercise  and  for  the  application  of  his 
political  principles,  — and  because  he  could  neither 
seek  nor  find  distinction  in  a line  of  politics  which 
tended  to  disunion,  — that  his  position  at  this  time 
is  so  interesting  and  important.  As  a citizen  of 
New  York,  too,  his  position  was  personally  critical. 
He  had  carried  on  a vigorous  contest  with  the  op- 
ponents of  the  Constitution  in  that  State;  he  had 
encountered  obloquy  and  misrepresentation  and  ran- 
cor, — perhaps  he  had  provoked  them.  He  had 
told  the  people  of  the  State,  for  years,  that  they  had 
listened  to  wrong  counsels,  when  they  had  lent  them- 
selves to  measures  that  retarded  the  growth  of  a na- 
tional spirit  and  an  efficient  general  government. 
The  correctness  of  his  judgment  was  now,  therefore, 
openly  and  palpably  in  the  issue.  His  public  pol- 
icy, with  reference  to  the  relations  of  the  State  to 
the  Union,  was  now  to  stand,  or  to  fall,  with  the 
Constitution  proposed. 

When  he  entered  the  convention  of  the  State,  he 
was  convinced  that  the  Anti-Federalists  were  de- 
termined that  New  York  should  not  become  a mem- 
ber of  the  new  Union,  whatever  might  be  done  by 
the  other  States.1  He  had  also  received  information, 

1 See  his  correspondence  with  Madison,  Works,  I.  pp.  450-469. 


572 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


which  led  him  to  believe  that  the  Governor,  Clinton, 
had  in  conversation  declared  the  Union  unnecessary; 
but  of  this,  if  true,  he  could  make  no  public  use. 
His  suspicions  were  certainly  justified  by  the  ten- 
dency of  the  arguments  made  use  of  by  the  opposi- 
tion, during  the  few  first  days  of  the  session ; for  it 
was  the  tendency  of  those  arguments  to  maintain 
the  idea  that  New  York  could  very  well  stand  alone, 
even  if  the  Constitution  should  be  established  by 
nine  States,  she  refusing  to  be  one  of  them.  With 
this  view,  they  pressed  the  consideration  under 
which  they  had  all  along  acted,  that  the  Confedera- 
tion, if  amended,  would  be  sufficient  for  all  the 
proper  purposes  of  a general  government ; and  their 
plan  for  such  an  amendment  of  the  Confederation 
was,  to  provide  that  its  requisitions  for  money  should 
continue  to  be  made  as  they  had  been,  and  that 
Congress  should  have  the  new  power  of  compelling 
payment  by  force,  when  a State  had  refused  to  com- 
ply with  a requisition. 

Hamilton  answered  this  suggestion  with  great 
energy.  It  is  inseparable,  he  said,  from  the  dispo- 
sition of  bodies  which  have  a constitutional  power 
of  resistance,  to  inquire  into  the  merits  of  a law. 
This  had  ever  been  the  case  with  the  federal  requi- 
sitions. In  this  examination,  the  States,  unfurnished 
with  the  lights  which  directed  the  deliberations  of 
the  general  government,  and  incapable  of  embracing 
the  general  interests  of  the  Union,  had  almost  uni- 
formly weighed  the  requisitions  by  their  own  local 
interests,  and  had  only  executed  them  so  far  as  an- 


Ch.  in.] 


NEW  YOEK. 


573 


swered  their  particular  convenience  or  advantage. 
But  if  we  have  national  objects  to  pursue,  we  must 
have  national  revenues.  If  requisitions  are  made 
and  are  not  complied  with,  what  is  to  be  done  \ To 
coerce  the  States  would  be  one  of  the  maddest  pro- 
jects ever  devised.  No  State  would  ever  suffer  itself 
to  be  used  as  the  instrument  of  coercing  another. 
A federal  standing  army,  then,  must  enforce  the 
requisitions,  or  the  federal  treasury  would  be  left 
without  supplies  and  the  government  without  sup- 
port. There  could  be  no  cure  for  this  great  evil, 
but  to  enable  the  national  laws  to  operate  on  indi- 
viduals, like  the  laws  of  the  States.  To  take  the 
old  Confederation  as  the  basis  of  a new  system,  and 
to  trust  the  sword  and  the  purse  to  a single  assem- 
bly organized  upon  principles  so  defective,  — giv- 
ing it  the  full  powers  of  taxation  and  the  national 
forces,  — would  be  to  establish  a despotism.  These 
considerations  showed  olearly  that  a totally  different 
government,  with  proper  powers  and  proper  checks 
and  balances,  must  be  established. 

The  convention  soon  afterwards  passed  to  an  ani- 
mated discussion  on  the  system  of  representation 
proposed  in  the  Constitution,  and  while  an  amend- 
ment relating  to  the  Senate  was  pending,  on  the 
24th  of  June,  Hamilton  received  intelligence  from 
the  East,  that  on  the  21st  the  convention  of  New 
Hampshire  had  ratified  the  Constitution.  Up  to 
this  moment,  the  opposition,  while  disclaiming  ear- 
nestly all  wish  to  bring  about  a dissolution  of  the 
Union,  or  to  prevent  the  establishment  of  some  firm 


574 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


and  efficient  government,  had  still  continued,  in 
every  form,  to  press  a line  of  argument  which 
tended  to  produce  the  rejection  of  the  Constitution 
proposed ; and  it  was  evident  that  their  opponents 
could  throw  upon  them  the  responsibility  of  a dis- 
solution of  the  Union  only  by  a deduction  from  the 
tendency  of  their  reasoning.  But  now  that  the  Con- 
stitution had  been  adopted  by  the  number  of  States 
which  its  provisions  required  for  its  establishment, 
the  Federalists  determined  that  the  opposition  should 
publicly  meet  the  issue  raised  by  the  new  aspect  of 
affairs,  which  was  to  determine  whether  the  State  of 
New  York  should  or  should  not  place  itself  out  of 
the  pale  of  the  new  confederacy,  — whether  it  should 
or  should  not  stand  in  a hostile  attitude  towards  the 
nine  States  which  had  thus  signified  their  determi- 
nation to  institute  a new  government.  Accordingly, 
on  the  next  day,  Chancellor  Livingston  formally  an- 
nounced in  the  convention  the  intelligence  that  had 
been  received  from  New  Hampshire,  which,  he  said, 
had  evidently  changed  the  circumstances  of  the 
country  and  the  ground  of  the  present  debate.  He 
declared  that  the  Confederation  was  now  dissolved. 
Would  they  consider  the  situation  of  their  country  \ 
However  some  might  contemplate  disunion  without 
pain,  or  flatter  themselves  that  some  of  the  Southern 
States  would  form  a league  with  them,  he  could  not 
look  without  horror  at  the  dangers  to  which  any 
such  confederacy  would  expose  the  State  of  New 
York. 

This  dilemma  embarrassed,  but  did  not  subdue, 


Ch.  in.] 


NEW  YORK. 


575 


the  opposition.  They  reiterated  their  denial  of  a 
purpose  to  produce  a dissolution  of  the  Union, 
doubtless  with  entire  sincerity ; but  they  continued 
the  argument  which  was  designed  to  show  that  the 
State  ought  not  to  adopt  a system  dangerous  to  lib- 
erty, under  a fear  of  the  situation  in  which  it  might 
be  placed. 

Here,  then,  the  reader  should  pause  for  a mo- 
ment, in  order  to  form  a just  appreciation  of  the 
course  pursued  by  Hamilton,  in  this  altered  aspect 
of  affairs,  when  nothing  remained  to  be  done  but 
to  get  the  State  of  New  York,  if  possible,  into  the 
new  Union.  We  have  now  the  means  of  knowing 
precisely  how  he  estimated  the  chances  of  succeeding 
in  this  effort.  On  the  27th,  while  the  discussion 
was  still  going  on,  he  wrote  to  Madison  as  follows : 
“ There  are  some  slight  symptoms  of  relaxation  in 
some  of  the  leaders,  which  authorizes  a gleam  of 
hope,  if  you  do  well ; but  certainly  I think  not  other- 
wise.” 1 At  the  same  time,  we  know  that  his  latest 
news  from  Virginia  was  not  encouraging.2 

How  easy,  then,  perhaps  natural,  it  would  have 
been  for  him  to  have  abandoned  this  “gleam  of 
hope,”  — to  have  turned  his  back  upon  the  State  and 
all  its  cabals,  — to  have  left  the  Anti-Federalists  to 
determine  the  fate  of  New  York,  and  to  have  trans- 
ferred himself  to  what  was  then  the  larger  communi- 
ty, the  great  State  of  Pennsylvania,  or  to  any  of  the 
other  States  which  had  adopted  the  Constitution! 

1 Works,  I.  462.  had  then  received  from  Madison. 

2 See  the  latest  letter  which  he  Ibid.  461. 


576 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


He  must  have  been  received  anywhere  with  the  con- 
sideration due  to  his  high  reputation,  his  abilities, 
his  public  services,  and  his  acknowledged  patriotism. 
He  must  have  been  regarded,  in  any  State  that  had 
accepted  the  new  government,  as  a person  whose 
assistance  was  indispensable  to  its  success ; and  so 
he  would  have  been  looked  upon  by  the  main  body 
of  the  people  throughout  the  new  confederacy.  He 
had  no  ties  of  office  to  bind  him  to  the  State  of  New 
York.  He  held  one  of  her  seats  in  the  Congress  of 
the  Confederation,  but  that  was  a body  which  must 
soon  cease  to  exist.  His  political  opponents  had  an 
undoubted  majority  in  the  State.  The  social  ties 
which  had  bound  him  to  her  soil  could  have  been 
severed.  He  could  have  left  her,  therefore,  to  the 
counsels  of  his  adversaries,  and  could  have  sought 
and  found  for  himself  a career  of  ambition  in  the 
new  sphere  that  was  open  to  receive  him.  That  ca- 
reer would  have  tempted  men  of  an  inferior  mould, 
and  would  have  seen  them  yield  to  the  temptation 
perhaps  the  more  readily,  because  the  conflicts  that 
would  have  been  inevitable  between  rival  confedera- 
cies would  have  presented  fresh  fields  for  exertion 
and  personal  energy,  new  excitements  and  new  ad- 
ventures. It  is,  too,  a mournfully  interesting  reflec- 
tion, that  if  Hamilton  had  then  cut  himself  free  from 
the  entanglements  of  the  local  politics  of  New  York 
by  a change  of  residence,  he  probably  could  never 
have  been  drawn  into  that  miserable  quarrel  with 
the  wretch  who  in  after  years  planned  his  destruc- 
tion, and  who  gained  by  it  the  execrable  distinction 


Ch.  in.] 


NEW  YORK. 


577 


of  having  taken  the  most  important  life  that  has 
ever  fallen  by  the  assassination  of  the  duel,  since  its 
opportunities  for  murder  have  been  known  among 
men. 

But  with  whatever  melancholy  interest  we  may 
pursue  such  a suggestion  of  what  Hamilton  might 
have  done,  it  needs  but  to  be  made,  in  order  to  show 
how  far  he  stood  above  the  reach  of  such  a tempta- 
tion. From  his  first  entrance,  in  boyhood,  into  pub- 
lic life,  his  patriotism  had  comprehended  nothing 
less  than  the  whole  of  the  United  States.  Whatever 
may  be  thought  of  his  policy,  either  before  or  after 
the  Constitution  was  established,  no  just  man  will 
deny  its  comprehensive  nationality.  He  now  saw 
that  no  partial  confederacy  of  the  States  could  be 
of  any  permanent  value.  He  had  no  favorite  theo- 
ries involved  in  the  Constitution,  no  peculiar  experi- 
ments that  he  wished  to  try.  He  embraced  it,  be- 
cause he  believed  in  its  capacity  to  unite  the  whole 
of  the  States,  to  concentrate  and  harmonize  their 
interests,  and  to  accomplish  national  objects  of  the 
utmost  importance  to  their  welfare.  It  could,  with- 
out doubt,  be  inaugurated  and  put  into  operation 
without  the  concurrence  of  New  York.  But  to 
leave  that,  or  any  other  State  near  the  geographical 
centre  of  the  Union,  out  of  the  confederacy,  would 
be  to  leave  its  sovereignty  and  rights  exposed  to  per- 
petual collision  with  the  new  government.  No  public 
or  private  purpose  could  have  induced  Hamilton  to 
abandon  any  effort  that  might  prevent  such  a result. 
He  still  labored,  therefore,  with  those  who  were  as- 

73 


VOL.  II. 


578 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


sociated  with  him,  to  procure  an  adoption  of  the 
Constitution  by  the  State  of  New  York;  and  we 
must  bear  in  mind  the  vast  importance  of  her  action, 
and  the  difficulties  with  which  he  had  to  contend, 
that  we  may  take  a just  view  of  the  concessions  to 
the  opposition  which  he  seems  at  one  stage  of  the 
crisis  to  have  been  obliged  to  consider. 

But  we  must  now  leave  him  in  the  midst  of  the 
embarrassments  by  which  he  was  surrounded,  to  fol- 
low his  messenger,  whom  he  instantly  despatched, 
on  the  24th,  with  letters  to  Madison  at  Richmond, 
announcing  the  news  of  the  ratification  by  New 
Hampshire.  The  courier  passed  through  the  city 
of  New  York  on  the  25  th,  and  reached  Philadelphia 
on  the  26th.  The  newspapers  of  the  latter  city  im- 
mediately cried  out,  “ The  reign  of  anarchy  is  over,” 
and  the  popular  enthusiasm  rose  to  the  highest  point. 
The  courier  passed  on  to  the  South ; but  the  con- 
vention of  Virginia  had,  in  fact,  ratified  the  Consti- 
tution before  he  arrived  in  Philadelphia.  Thus, 
while  New  Hampshire,  in  the  actual  order  of  events, 
was  the  ninth  State  to  adopt  the  Constitution,  yet 
Virginia  herself,  so  far  as  the  members  of  her  con- 
vention were  informed,  appeared  at  the  time  of  their 
voting  to  be  the  ninth  adopting  State.  It  is  certain 
that  they  acted  without  any  real  knowledge  of  what 
had  taken  place  in  New  Hampshire,  although  there 
may  have  been  random  assertions  of  what  nobody  at 
Richmond  could  then  have  known.1 

1 It  has  been  supposed  that  this  messenger  arrived  at  Richmond 
was  not  so,  but  that  Hamilton’s  before  the  final  action  of  the  Vir- 


Ch.  in.] 


VIRGINIA. 


579 


The  result  was  brought  about  in  Virginia  by  the 
force  of  argument,  and  because  the  friends  of  the 
Constitution  were  at  last  able  to  reduce  the  issue  to 
the  single  question  of  previous  or  subsequent,  that 
is,  of  conditional  or  recommendatory,  amendments. 
As  the  State  appeared  likely  to  be  the  ninth  State 
to  act,  and  they  could  insist  that,  if  she  rejected  the 
Constitution,  she  must  bear  the  responsibility  of  de- 
feating the  establishment  of  the  new  government,  — 
a consequence  wrhich  they  could  reasonably  predict, 
— they  had  a high  vantage-ground  from  which  to 
address  the  reason  and  patriotism  of  the  assembly. 

Henry  and  the  other  leaders  of  the  opposition 
fought  valiantly  to  the  last.  When  the  whole  sub- 
ject had  been  exhausted,  the  friends  of  the  Constitu- 
tion presented  the  propositions  on  which  they  were 
willing  to  rest  the  action  of  the  State,  and  which 
declared,  in  substance,  that  the  powers  granted  un- 
der the  proposed  Constitution  are  the  gift  of  the 
people,  and  that  every  power  not  granted  thereby  re- 
mains with  them,  and  at  their  will,  — consequently 


ginia  convention,  and  so  that  the 
decision  of  New  Hampshire  had  an 
important  influence.  I think  this 
is  clearly  a mistake.  I have  traced 
the  progress  of  the  messenger  in 
the  newspapers  of  that  time,  and 
find  his  ax-rival  at  New  York  and 
Philadelphia  chronicled  as  it  is 
given  in  the  text.  The  dates  are 
therefore  decisive.  It  appears  also 
from  Mr.  Madison’s  correspondence 
with  Hamilton,  that  he  did  not 
receive  the  despatch  about  New 


Hampshire  until  the  31st.  (Ham- 
ilton’s Works,  I.  463.)  The  ratifi- 
cation passed  the  Virginia  conven- 
tion on  the  25th,  and  that  body 
was  dissolved  on  the  27th.  There 
is  no  trace  in  the  Virginia  debates 
of  any  authentic  news  from  New 
Hampshire.  On  the  contrary,  it 
was  assumed  by  one  of  the  speak- 
ers, Mr.  Innes,  on  the  day  of  their 
ratification,  that  the  Constitution 
then  stood  adopted  by  eight  States. 
(Elliot,  IH.  636.) 


580 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


that  no  right  can  be  abridged,  restrained,  or  modified 
by  the  general  government  or  any  of  its  departments, 
except  in  those  instances  in  which  power  is  given  by 
the  Constitution  for  those  purposes ; and  that,  among 
other  essential  rights,  liberty  of  conscience  and  of 
the  press  cannot  be  cancelled,  abridged,  restrained, 
or  modified,  by  any  authority  of  the  United  States ; 
that  the  Constitution  ought,  therefore,  to  be  ratified, 
but  that  whatsoever  amendments  might  be  deemed 
necessary  ought  to  be  recommended  to  the  consider- 
ation of  the  first  Congress  that  should  assemble  un- 
der the  Constitution,  to  be  acted  upon  according  to 
the  mode  prescribed  therein. 

Mr.  Henry,  on  the  other  hand,  brought  forward 
a counter  project,  by  which  he  proposed  to  declare 
that,  previous  to  the  ratification  of  the  Constitution, 
a Declaration  of  Rights,  asserting  and  securing  from 
encroachment  the  great  principles  of  civil  and  relig- 
ious liberty,  and  the  inalienable  rights  of  the  people, 
together  with  amendments  to  the  most  exceptionable 
parts  of  the  Constitution,  ought  to  be  referred  by 
the  convention  of  Virginia  to  the  other  States  in  the 
American  confederacy  for  their  consideration. 

The  issue  was  thus  distinctly  made  between  pre- 
vious or  conditional  and  subsequent  or  unconditional 
amendments,  and  made  in  a form  most  favorable  to 
the  friends  of  the  Constitution ; for  it  enabled  them 
to  present  so  vigorously  and  vividly  the  consequen- 
ces of  suspending  the  inauguration  of  the  new  gov- 
ernment until  the  other  States  could  consider  the 
amendments  desired  by  Virginia,  that  they  procured 


Ch.  Ill] 


VIRGINIA. 


581 


a rejection  of  Mr.  Henry’s  resolution  by  a majority 
of  eight,  and  a ratification  of  the  Constitution  by  a 
majority  of  ten  votes.  A long  list  of  amendments, 
together  with  a Bill  of  Bights,  was  then  adopted, 
to  be  presented  to  Congress  for  its  consideration.1 

The  conduct  of  Mr.  Henry,  when  he  saw  that  the 
adoption  of  the  Constitution  was  inevitable,  was  all 
that  might  have  been  expected  from  his  patriotic 
and  unselfish  character.  “ If  I shall  be  in  the  mi- 
nority,” he  said,  “ I shall  have  those  painful  sensa- 
tions which  arise  from  a conviction  of  being  over- 
powered in  a good  cause.  Yet  I will  be  a peaceable 
citizen.  My  head,  my  hand,  and  my  heart  shall  be 
free  to  retrieve  the  loss  of  liberty,  and  remove  the 
defects  of  this  system  in  a constitutional  way.  I 
wish  not  to  go  to  violence,  but  will  wait  with  hopes 
that  the  spirit  which  predominated  in  the  Revolu- 
tion is  not  yet  gone,  nor  the  cause  of  those  who  are 
attached  to  the  Revolution  yet  lost.  I shall,  there- 
fore, patiently  wait  in  expectation  of  seeing  this  gov- 
ernment so  changed  as  to  be  compatible  with  the 
safety,  liberty,  and  happiness  of  the  people.”  2 This 


1 The  form  of  ratification  em- 
braced the  recitals  given  in  the 
text  respecting  the  powers  of  Con- 
gress. It  was  adopted  by  a vote 
of  89  to  79,  on  the  25th  of  June, 
1788.  I do  not  go  into  the  partic- 
ular consideration  of  the  amend- 
ments proposed  by  several  of  the 

State  conventions,  because  the  pres- 
ent work  is  confined  to  the  origin, 
the  formation,  and  the  adoption  of 
the  Constitution,  and  no  State  that 


ratified  the  instrument  proposed 
by  the  national  Convention  made 
amendments  a condition.  The  ex- 
amination of  the  amendments  pro- 
posed, therefore,  belongs  to  the  his- 
tory of  the  Constitution  subsequent 
to  its  inauguration.  They  may  all 
be  found  in  the  Appendix  to  the 
thirteenth  volume  of  the  Journals 
of  the  Old  Congress. 

2 Debates  in  Virginia  Conven- 
tion, Elliot,  III.  652. 


582 


ADOPTION  OP  THE  CONSTITUTION  [Book  V. 


noble  and  disinterested  patriot  lived  to  find  the  Con- 
stitution all  that  he  wished  it  to  be,  and  to  enroll 
himself,  in  the  day  of  its  first  serious  trial,  among 
its  most  vigorous  and  earnest  defenders. 

But  some  of  the  members  of  the  opposition  were 
not  so  discreet.  Immediately  after  the  adjournment 
of  the  convention,  they  prepared  an  address  to  the 
people,  intended  to  produce  an  effort  to  prevent  the 
inauguration  of  the  new  government  by  a combined 
arrangement  among  the  legislatures  of  the  several 
States.  But  this  paper,  which  never  saw  the  light, 
was  rejected  by  their  own  party,  and  the  opposition 
in  Virginia  subsided  into  a general  acquiescence  in 
the  action  of  the  convention.1 

The  ratification  of  Virginia  took  place  on  the  25  th 
of  June;  the  news  of  this  event  was  received  and  pub- 
lished in  Philadelphia  on  the  2d  of  July.  The  press 
of  the  city  was  at  once  filled  with  rejoicings  over  the 
action  of  Virginia.  She  was  the  tenth  pillar  of  the 
temple  of  liberty.  She  was  Virginia,  — eldest  and 
foremost  of  the  States,  — land  of  statesmen  whose 
Revolutionary  services  were  as  household  words  in 
all  America, — -birthplace  and  home  of  Washington! 
We  need  not  wonder,  when  she  had  come  so  tardily, 
so  cautiously,  into  the  support  of  the  Constitution, 
that  men  should  have  hailed  her  accession  with  en- 
thusiasm. The  people  of  Philadelphia  had  been 
for  some  time  preparing  a public  demonstration,  in 
honor  of  the  adoption  of  the  Constitution  by  nine 
States.  Now  that  Virginia  was  added  to  the  num- 

1 Madison’s  letters  to  Hamilton,  Works  of  Hamilton,  I.  462,  463. 


Ch.  in.] 


PHILADELPHIA  PROCESSION. 


583 


ber,  they  determined  that  all  possible  magnificence 
and  splendor  should  be  given  to  this  celebration,  and 
they  chose  for  it  the  anniversary  day  of  the  National 
Independence 

A taste  for  allegory  appears  to  have  been  quite 
prevalent  among  the  people  of  the  United  States  at 
this  period.  Accordingly,  the  Philadelphia  proces- 
sion of  July  4,  1788,  was  filled  with  elaborate  and 
emblematic  representations.  It  was  a long  pageant 
of  banners,  of  trades,  and  devices.  A decorated  car 
bore  the  Constitution  framed  as  a banner  and  hung 
upon  a staff.  Then  another  decorated  car  carried 
the  American  flag  and  the  flags  of  all  friendly  na- 
tions. Then  followed  the  judges  in  their  robes,  and 
all  the  public  bodies,  preceding  a grand  federal  edi- 
fice, which  was  carried  on  a carriage  drawn  by  ten 
horses.  On  the  floor  of  this  edifice  were  seated,  in 
chairs,  ten  gentlemen,  representing  the  citizens  of 
the  United  States  at  large,  to  whom  the  Federal 
Constitution  had  been  committed  before  its  ratifica- 
tion. When  it  arrived  at  “ Union  Green,”  they  gave 
up  their  seats  to  ten  others  representing  the  ten 
States  which  had  ratified  the  instrument.  The  fed- 
eral ship,  “ The  Union,”  came  next,  followed  by  all 
the  trades,  plying  their  various  crafts  upon  elevated 
platforms,  with  their  several  emblems  and  mottoes, 
strongly  expressing  confidence  in  the  protection  that 
would  be  afforded  under  the  Constitution  to  all  the 
forms  of  American  manufactures  and  mechanic  arts. 
Ten  vessels  paraded  on  the  Delaware,  each  with  a 
broad  white  flag  at  its  masthead,  bearing  the  name 


584 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


of  one  of  the  ten  States  in  gold  letters  ; and,  as  if  to 
combine  the  ideas  both  of  the  absence  and  the  pres- 
ence of  the  ten  States,  ten  carrier-pigeons  were  let 
off  from  the  printers’  platform,  each  with  a small 
package  bearing  “ the  ode  of  the  day  ” to  one  of  the 
ten  rejoicing  and  sympathizing  States. 

Thus  did  ingenuity  and  mechanical  skill  exert  them- 
selves in  quaint  devices  and  exhibitions,  to  portray,  to 
personify,  and  to  celebrate  the  vast  social  consequen- 
ces of  an  event  which  had  then  no  parallel  in  the 
history  of  any  other  country,  — the  free  and  volun- 
tary adoption  by  the  people  of  a written  constitution 
of  government  framed  by  the  agents  and  representa- 
tives of  the  people  themselves.  The  carrier  birds 
are  not  known  to  have  literally  performed  their  tasks, 
but  as  rapidly  as  horse  and  man  could  carry  it,  the 
news  from  Virginia  pressed  on  to  the  North,  and 
reached  Hamilton  at  Poughkeepsie  on  the  8th  of 
July. 

It  found  him  still  surrounded  by  the  same  difficul- 
ties that  existed  when  he  received  the  result  of  the 
convention  of  New  Hampshire.  The  opposition  had 
relaxed  none  of  their  efforts  to  prevent  the  adoption 
of  the  Constitution;  they  had  only  become  some- 
what divided  respecting  the  method  to  be  pursued 
for  its  defeat.  Some  of  them  were  in  favor  of  con- 
ditions precedent,  or  previous  amendments ; some, 
of  conditions  subsequent,  or  the  proposal  of  amend- 
ments upon  the  condition  that,  if  they  should  not  be 
adopted  within  a certain  time,  the  State  should  be  at 
liberty  to  withdraw  from  the  Union ; and  all  of  them 


Ch.  HI.] 


NEW  YORK. 


585 


were  determined,  in  case  the  Constitution  should 
be  ratified,  to  carry  constructive  declarations  of  its 
meaning  and  powers  as  far  as  possible.  Hamilton 
was  conscious  that  the  chief  danger  to  which  the 
Constitution  itself  was  now  exposed,  was  that  a 
general  concurrence  in  injudicious  recommendations 
might  seriously  wound  its  power  of  taxation,  by 
causing  a recurrence,  in  some  shape,  to  the  system 
of  requisitions.  The  danger  to  which  the  State  of 
New  York  was  exposed,  was  that  it  might  not  be- 
come a member  of  the  new  Union,  in  any  form. 

The  leading  Federalists  who  were  united  with 
Hamilton  in  the  effort  to  prevent  such  a disastrous 
issue  of  this  convention  were  John  Jay,  the  Chan- 
cellor Robert  R.  Livingston,  and  James  Duane.  A 
few  days  after  the  intelligence  from  New  Hampshire 
was  received,  these  gentlemen  held  a consultation  as 
to  the  most  effectual  method  of  encountering  the 
objections  made  to  the  general  power  of  taxation 
that  would  he  conferred  by  the  Constitution  upon 
the  general  government.  The  legislative  history  of 
the  State,  from  1780  to  1782,  embraced  a series  of 
official  acts  and  documents,  showing  that  the  State 
had  been  compelled  to  sustain  a very  large  share  of 
the  burden  of  the  Revolutionary  war ; that  requisi- 
tions had  been  unable  to  call  forth  the  resources  of 
the  country ; and  that,  in  the  judgment  of  the  State, 
officially  and  solemnly  declared  in  1782,  and  con- 
curred in  by  those  who  now  resisted  the  establish- 
ment of  the  Constitution,  it  was  necessary  that  the 
Union  should  possess  other  sources  of  revenue.  The 

74 


YOL.  II. 


586 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


Federalists  now  resolved  that  these  documents  be 
formally  laid  before  the  convention,  and  Hamilton 
undertook  to  bring  them  forward. 

On  the  27th  of  June,  he  commenced  the  most  elab- 
orate and  important  of  the  speeches  which  he  made 
in  this  assembly,  for  the  purpose  of  showing  that  in 
the  construction  of  a government  the  great  objects 
to  be  attained  are  a free  and  pure  representation, 
and  a proper  balance  between  the  different  branches 
of  administration ; and  that  when  these  are  obtained, 
all  the  powers  necessary  to  answer,  in  the  most  am- 
ple manner,  the  purposes  of  government,  may  be 
bestowed  with  entire  safety.  He  proceeded  to  argue, 
not  only  that  a general  power  of  taxation  was  essen- 
tial, but  that,  under  a system  so  complex  as  that  of 
the  Constitution,  — so  skilfully  endowed  with  the 
requisite  forms  of  representation  and  division  of  ex- 
ecutive and  legislative  power,  — it  was  next  to  im- 
possible that  this  authority  should  be  abused.  In 
the  course  of  this  speech,  and  for  the  purpose  of 
showing  that  the  State  had  suffered  great  distresses 
during  the  war  from  the  mode  of  raising  revenues 
by  requisitions,  he  called  for  the  reading  at  the 
clerk’s  table  of  a series  of  documents  exhibiting  this 
fact.  Governor  Clinton  resisted  their  introduction, 
but  they  were  read ; and  Hamilton  and  his  friends 
then  contended,  that  they  proved  beyond  dispute 
that  the  State  had  once  been  in  great  peril  for  want 
of  an  energetic  general  government. 

This  movement  produced  a warm  altercation  be- 
tween the  leading  gentlemen  on  the  opposite  sides 


Ch.  III.] 


NEW  YORK. 


587 


of  the  house.  But  while  it  threw  a grave  responsi- 
bility upon  the  opposition,  it  did  not  conquer  them ; 
and  by  the  day  on  which  the  intelligence  from  Vir- 
ginia arrived,  they  had  heaped  amendments  upon 
the  table  on  almost  every  clause  and  feature  of  the 
Constitution,  some  one  or  more  of  which  it  was 
highly  probable  they  would  succeed  in  making  a 
condition  of  its  acceptance. 

This  critical  situation  of  affairs  led  Hamilton  to 
consider,  for  a short  time,  whether  it  might  not  be 
necessary  to  accede  to  a plan,  by  which  the  State 
should  reserve  the  right  to  recede  from  the  Union, 
in  case  its  amendments  should  not  have  been  de- 
cided upon,  in  one  of  the  modes  pointed  out  by  the 
Constitution,  within  five  or  six  years.  He  saw  the 
objections  to  this  course ; and  he  was  determined  to 
leave  no  effort  untried  to  bring  the  opposition  to  an 
unqualified  ratification.  But  the  danger  of  a rejec- 
tion of  the  Constitution  was  extreme;  and  as  a 
choice  of  evils,  he  thought  that,  if  the  State  could  in 
the  first  instance  be  received  into  the  Union  under 
such  a reserved  right  to  withdraw,  succeeding  events, 
by  the  adoption  of  all  proper  and  necessary  amend- 
ments, would  make  the  reservation  unimportant,  be- 
cause such  amendments  would  satisfy  the  more  rea- 
sonable part  of  the  opposition,  and  would  thus  break 
up  their  party.  But  he  determined  not  to  incur  the 
hazard  of  this  step  upon  his  own  judgment  alone, 
or  that  of  any  one  else  having  a personal  interest  in 
the  question;  and  accordingly,  on  the  12  th  of  July, 
he  despatched  a letter  to  Madison,  who  was  then 


588 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


attending  in  Congress  at  the  city  of  New  York,  ask- 
ing his  opinion  upon  the  possibility  of  receiving  the 
State  into  the  Union  in  this  form.1 

Madison  instantly  replied,  that,  in  his  opinion,  this 
would  be  a conditional  ratification,  and  would  not 
make  the  State  of  New  York  a member  of  the  new 
Union;  that  the  Constitution  required  an  adoption 
in  toto  and  for  ever;  and  that  any  condition  must 
vitiate  the  ratification  of  any  State.2 

Before  this  reply  could  have  been  received  at 
Poughkeepsie,  the  Federalists  had  introduced  their 
proposition  for  an  unconditional  ratification,  and  this 
was  followed  by  that  of  the  Anti-Federalists  for  a 
conditional  one.  The  former  was  rejected  by  the 
convention  on  the  16th  of  July.  The  opposition 
then  brought  forward  a new  form  of  conditional  rat- 
ification, with  a Bill  of  Rights  prefixed,  and  with 
amendments  subjoined.  After  a long  debate,  the 
Federalists  succeeded,  on  the  23d  of  July,  in  procur- 
ing a vote  to  change  this  proposition,  so  that,  in  place 
of  the  words  “ on  condition,”  the  people  of  the  State 
would  be  made  to  declare  that  they  assented  to  and 
ratified  the  Constitution  “ in  full  confidence  ” that, 
until  a general  convention  should  be  called  for  pro- 
posing amendments,  Congress  would  not  exercise 
certain  powers  which  the  Constitution  conferred  up- 
on them.  This  alteration  was  carried  by  thirty-one 
votes  against  twenty-seven.  A list  of  amendments  was 
then  agreed  upon,  and  a circular  letter  was  adopted, 
to  be  sent  to  all  the  States,  recommending  a general 

i Letter  to  Madison,  Works  of  Hamilton,  I.  464.  2 Ibid.  465. 


Ch.  Ill] 


SECOND  GENERAL  CONVENTION. 


589 


convention ; and  on  Saturday,  the  26th  of  J uly,  the 
ratification,  as  thus  framed,  with  the  Bill  of  Bights 
and  the  amendments,  was  carried  by  thirty  affirma- 
tive against  twenty-seven  negative  votes.1 

By  this  slender  majority  of  her  delegates,  and  un- 
der circumstances  of  extreme  peril  of  an  opposite 
decision,  did  the  State  of  New  York  accept  the  Con- 
stitution of  the  United  States,  and  become  a member 
of  the  new  government.  The  facts  of  the  case,  and 
the  importance  of  her  being  brought  into  the  new 
Union,  afford  a sufficient  vindication  of  the  course 
pursued  by  the  Federalists  in  her  convention.  But 
it  is  necessary,  before  closing  the  history  of  these 
events,  to  consider  a complaint  that  was  made  at  the 
time,  by  some  of  the  most  zealous  of  their  political 
associates  in  other  quarters,  and  which  touched  the 
correctness  of  their  motives  in  assenting  to  the  cir- 
cular letter  demanding  a general  convention  for  the 
amendment  of  the  Constitution. 

That  there  was  danger  lest  another  general  con- 
vention might  result  in  serious  injury  to  the  Consti- 
tution, perhaps  in  its  overthrow,  was  a point  on 
which  there  was  probably  no  difference  of  opinion 
among  the  Federalists  of  that  day.  Washington 
regarded  it  in  this  light ; and  there  is  no  reason  to 


1 It  was  reported  in  the  newspa- 
pers of  that  period  that  the  Consti- 
tution was  adopted  in  this  conven- 
tion by  30  yeas  against  25  nays. 
But  the  official  record  gives  the 
several  votes  as  they  are  stated  in 
the  text ; from  which  it  appears 


that,  on  the  critical  question  of  a 
conditional  or  unconditional  ratifi- 
cation, the  majority  was  only  2.  In 
truth,  the  ratification  of  New  York 
barely  escapes  the  objection  of  be- 
ing a qualified  one,  if  it  does  in  fact 
escape  it. 


590  ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 

doubt  that  Hamilton  and  Jay,  and  many  others  of 
the  friends  of  the  Constitution,  would  have  felt  great 
anxiety  about  its  result.  But  there  were  some  mem- 
bers of  the  Federal  party,  in  several  of  the  States,  who 
do  not  seem  to  have  fully  appreciated  the  importance 
of  conceding  to  the  opposition,  at  the  time  of  the 
adoption  of  the  Constitution,  the  use  of  any  and 
every  form  of  obtaining  amendments  which  the  Con- 
stitution itself  recognized.  This  was  true  every- 
where, where  serious  dissatisfaction  existed,  and  it 
was  especially  true  in  the  State  of  New  York.  It 
was  impossible  to  procure  a ratification  in  that  State, 
without  an  equivalent  concession ; and  if  the  Fed- 
eral leaders  in  that  convention  assented  to  the  pro- 
posal of  a course  of  amending  the  Constitution  for 
which  the  instrument  itself  provided,  however  ineli- 
gible it  might  be,  their  justification  is  to  be  found  in 
the  circumstances  of  their  situation.  Washington 
himself,  when  all  was  over,  wrote  to  Mr.  Jay  as  fol- 
lows : — “ Although  I could  scarcely  conceive  it  pos- 
sible, after  ten  States  had  adopted  the  Constitution, 
that  New  York,  separated  as  it  is  from  the  others, 
and  peculiarly  divided  in  sentiments  as  it  is,  would 
withdraw  from  the  Union,  yet,  considering  the  great 
majority  which  appeared  to  cling  together  in  the 
convention,  and  the  decided  temper  of  the  leaders, 
I did  not,  I confess,  see  how  it  was  to  be  avoided. 
The  exertion  of  those  who  were  able  to  effect  this 
great  work  must  have  been  equally  arduous  and 
meritorious.” 1 


1 Works  of  Washington,  IX.  408. 


Ch.  HI.] 


SECOND  GENERAL  CONVENTION. 


591 


But  others  were  not  so  just.  The  Federalists  of 
the  New  York  convention  were  complained  of  by 
some  of  their  friends  for  having  assented  to  the  cir- 
cular letter,  for  the  purpose  of  procuring  a ratifica- 
tion at  any  price,  in  order  to  secure  the  establish- 
ment of  the  new  government  at  the  city  of  New 
York.  It  was  said  that  the  State  had  better  have 
remained  out  of  the  Union,  than  to  have  taken  a 
course  which  would  prove  more  injurious  than  her 
rejection  would  have  done.1 

With  respect  to  these  complaints  and  the  accom- 
panying charge,  it  is  only  necessary  to  say,  in  the 
first  place,  that  Hamilton  and  Jay  and  their  asso- 
ciates believed  that  there  was  far  less  danger  to  be 
apprehended  from  a mere  call  for  a second  general 
convention,  than  from  a rejection  of  the  Constitution 
by  the  State  of  New  York ; and  they  had  to  choose 
between  these  alternatives.  The  result  shows  that 
they  chose  rightly ; for  the  assembling  of  a general 
convention  was  superseded  by  the  action  of  Congress 
upon  the  amendments  proposed  by  the  States.  In 
the  second  place,  the  alleged  motive  did  not  exist. 
We  now  know  that  Hamilton  certainly,  and  we 
may  presume  his  friends  also,  did  not  expect  or  de- 
sire the  new  government  to  be  more  than  tempora- 
rily placed  at  the  city  of  New  York.  He  himself 
saw  the  impolicy  of  establishing  it  permanently 
either  at  that  place  or  at  Philadelphia.  He  re- 
garded its  temporary  establishment  at  the  city  of 

1 Madison’s  letter  to  Washington,  August  24,  1788,  Works  of  Wash- 
ington, IX.  549. 


592 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


New  York  as  the  certain  means  of  carrying  it  far- 
ther south,  and  of  securing  its  final  and  permanent 
place  somewhere  upon  the  banks  of  the  Delaware 
within  the  limits  of  New  Jersey,  or  upon  the  banks 
of  the  Potomac  within  the  limits  of  Virginia.1 

The  people  of  the  city  of  New  York  had  waited 
long  for  the  decision  of  their  State  convention.  They 
had  postponed  several  times  their  intended  celebra- 
tion in  honor  of  the  Constitution,  which,  as  it  was 
to  be  the  last,  they  determined  should  be  the  most 
imposing  of  these  ceremonies.  When  the  day  at 
length  came,  on  the  5th  of  August,  1788,  it  saw  a 
population  whose  mutual  confidence  and  joy  had 
absorbed  every  narrow  and  bigoted  distinction  in 
that  noblest  of  all  the  passions  that  a people  can  ex- 
hibit, — love  of  country.  It  were  a vain  and  invid- 
ious task  to  attempt  to  determine,  from  the  contem- 
porary descriptions,  whether  this  display  exceeded 
that  of  all  the  other  cities  in  variety  and  extent. 
But  there  was  one  feature  of  it  so  striking,  so  cred- 
itable to  the  people  of  the  city  of  New  York,  that 
it  should  not  be  passed  over.  It  consisted  in  the 
honors  they  paid  to  Hamilton. 

He  must  have  experienced  on  that  day  the  best 
reward  that  a statesman  can  ever  find ; for  there  is 
no  purer,  no  higher  pleasure  for  a conscientious 
statesman,  than  to  know,  by  demonstrations  of  public 
gratitude,  that  the  humblest  of  the  people  for  whose 
welfare  he  has  labored  appreciate  and  are  thankful 

1 See  his  letter  to  Governor  Livingston  of  New  Jersey,  August  29, 
1788,  Works,  I.  471. 


Ch.  in.] 


HONORS  TO  HAMILTON. 


593 


for  his  sendees.  Public  life  is  often  represented,  and 
often  found,  to  be  a thankless  sphere,  for  men  of  the 
greatest  capacity  and  the  highest  patriotism ; and 
the  accidents,  the  defeats,  the  changes,  the  party 
passions  and  obstructions  of  the  political  world,  in  a 
free  government,  frequently  make  it  so.  But  man- 
kind are  neither  deliberately  heartless  nor  systemat- 
ically unthankful ; and  it  has  sometimes  happened, 
in  popular  governments,  that  statesmen  of  the  first 
order  of  mind  and  character  have,  while  living,  re- 
ceived the  most  unequivocal  proofs  of  feeling  directly 
from  the  popular  heart,  while  the  sum  total  of  their 
lives  appears  in  history  to  he  wanting  in  evidences 
of  that  personal  success  which  is  attained  in  a con- 
stant triumph  over  opponents.  Such  an  expression 
of  popular  gratitude  and  sympathy  it  was  now  the 
fortune  of  Hamilton  to  receive. 

The  people  of  the  city  did  not  stop  to  consider,  on 
this  occasion,  whether  he  was  entitled,  in  compari- 
son with  all  the  other  public  men  in  the  United 
States,  to  be  regarded  as  the  chief  author  of  the  bless- 
ings which  they  now  anticipated  from  the  Constitu- 
tion. And  why  should  they  1 He  was  their  fellow- 
citizen, — their  own.  They  remembered  the  day  when 
they  saw  him,  a mere  boy,  training  his  artillerymen 
in  their  public  park,  for  the  coming  battles  of  the 
Revolution.  They  remembered  the  youthful  elo- 
quence and  the  more  than  youthful  power  with 
which  he  encountered  the  pestilent  and  slavish  doc- 
trines of  their  Tories.  They  thought  of  his  career 
in  the  army,  when  the  extraordinary  maturity,  depth, 

75 


VOL.  II. 


594 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


and  vigor  of  his  genius,  and  his  great  accomplish- 
ments, supplied  to  Washington,  in  some  of  the  most 
trying  periods  of  his  vast  and  prolonged  responsibil- 
ity, the  assistance  that  Washington  most  needed. 
They  recollected  his  career  in  Congress,  when  his 
comprehensive  intellect  was  always  alert,  to  bear  the 
country  forward  to  measures  and  ideas  that  would 
concentrate  its  powers  and  resources  in  some  national 
system.  They  called  to  mind  how  he  had  kept  their 
own  State  from  wandering  quite  away  into  the  paths 
of  disunion,  — how  he  had  enlightened,  invigorated, 
and  purified  public  opinion  by  his  wise  and  energetic 
counsels,  — how  he  had  led  them  to  understand  the 
true  happiness  and  glory  of  their  country,  — how  he 
had  labored  to  bring  about  those  events  which  had 
now  produced  the  Constitution,  — how  he  had  shown 
to  them  the  harmony  and  success  that  might  be  pre- 
dicted of  its  operation,  and  had  taught  them  to  accept 
what  was  good,  without  petulantly  demanding  what 
individual  opinion  might  claim  as  perfect. 

What  was  it  to  them,  therefore,  on  this  day  of 
public  rejoicing,  that  there  might  be  in  his  policy 
more  of  consolidation  than  in  the  policy  of  others,  — 
that  he  was  said  to  have  in  his  politics  too  much  that 
was  national  and  too  little  that  was  local,  — that 
some  had  done  as  much  as  he  in  the  actual  construc- 
tion of  the  system  which  they  were  now  to  celebrate  1 
Such  controversies  might  be  for  history,  or  for  the 
contests  of  administration  that  Avere  soon  to  arise. 
On  this  day,  they  were  driven  out  of  men’s  thoughts 
by  the  gloAV  of  that  public  enthusiasm  which  banishes 


Ch.  m.] 


HONORS  TO  HAMILTON. 


595 


the  spirit  of  party,  and  touches  and  opens  the  inmost 
fountains  of  patriotism.  Hamilton  had  rendered  a 
series  of  great  services  to  his  country,  which  had 
culminated  in  the  adoption  of  the  Constitution  by 
the  State  of  New  York ; and  they  were  now  acknowl- 
edged from  the  very  hearts  of  those  who  best  knew 
his  motives  and  best  understood  his  character. 

The  people  themselves,  divided  into  their  respec- 
tive trades,  evidently  undertook  the  demonstrations 
in  his  honor,  and  gave  them  an  emphasis  which  they 
could  have  derived  from  no  other  source.  They  bore 
his  image  aloft  upon  banners.  They  placed  the 
Constitution  in  his  right  hand,  and  the  Confederation 
in  his  left.  They  depicted  Fame,  with  her  trumpet, 
crowning  him  with  laurels.  They  emblazoned  his 
name  upon  the  miniature  frigate,  the  federal  ship 
of  state.  They  anticipated  the  administration  of  the 
first  President,  by  uniting  on  the  national  flag  the 
figure  of  Washington  and  the  figure  of  Hamilton.1 
All  that  ingenuity,  all  that  affection,  that  popular 
pride  and  gratitude  could  do,  to  honor  a public  ben- 
efactor, was  repeated  again  and  again  through  the 
long  line  of  five  thousand  citizens,  of  all  orders  and 
conditions,  which  stretched  away  from  the  shores  of 
that  beautiful  bay,  where  ocean  ascends  into  river 
and  river  is  lost  in  ocean,  — where  Commerce  then 
wore  her  holiday  attire,  to  prefigure  the  magnificence 
and  power  which  she  was  to  derive  from  the  Consti- 
tution of  the  United  States. 

1 Some  of  the  most  elaborate  of  “ Block  and  Pump  Makers”  and 
these  devices  were  borne  by  the  the  “ Tallow-Chandlers.” 


CHAPTER  IY. 

Action  of  North  Carolina  and  Rhode  Island.  — Conclusion. 

Thus  had  eleven  States,  at  the  end  of  July,  1788, 
unconditionally  adopted  the  Constitution;  five  of 
them  proposing  amendments  for  the  consideration 
of  the  first  Congress  that  would  assemble  under  it, 
and  one  of  the  five  calling  for  a second  general  con- 
vention to  act  upon  the  amendments  desired.  Two 
other  States,  however,  North  Carolina  and  Rhode 
Island,  still  remained  aloof. 

The  legislature  of  North  Carolina,  in  December, 
1787,  had  ordered  a State  convention,  which  assem- 
bled July  21,  1788,  five  days  before  the  convention 
of  New  York  ratified  the  Constitution.  In  this 
body  the  Anti-Federalists  obtained  a large  majority. 
They  permitted  the  whole  subject  to  be  debated  un- 
til the  2d  of  August ; still  it  had  been  manifest  from 
the  first  that  they  would  not  allow  of  an  uncondi- 
tional ratification.  They  knew  what  had  been  the 
result  in  New  Hampshire  and  Virginia;  but  the 
decision  of  New  York  had,  of  course,  not  reached 
them.  Their  determination  was  not,  however,  to  be 
affected  by  the  certainty  that  the  new  government 


Ch.  IV.] 


NORTH  CAROLINA. 


597 


would  be  organized.  Their  purpose  was  not  to 
enter  the  new  Union,  until  the  amendments  which 
they  desired  had  been  obtained.  They  assumed 
that  the  Congress  of  the  Confederation  would  not 
provide  for  the  organization  of  the  new  government 
until  another  general  convention  had  been  held ; or, 
if  they  did,  that  such  a convention  would  be  called 
by  the  new  Congress ; — and  it  appeared  to  them  to 
be  the  most  effectual  mode  of  bringing  about  one  or 
the  other  of  these  courses,  to  remain  for  the  present 
in  an  independent  position.  The  inconvenience  and 
hazard  attending  such  a position  do  not  seem  to 
have  had  much  weight  with  them,  when  compared 
with  wrhat  they  regarded  as  the  danger  of  an  uncon- 
ditional assent  to  the  Constitution  as  it  then  stood. 

The  Federalists  contended  strenuously  for  the 
course  pursued  by  the  other  States  which  had  pro- 
posed amendments,  but  they  were  overpowered  by 
great  numbers,  and  the  convention  was  dissolved, 
after  adopting  a resolution  declaring  that  a Bill  of 
Rights,  and  certain  amendments,  ought  to  be  laid 
before  Congress  and  the  convention  that  might  be 
called  for  amending  the  Constitution,  previous  to  its 
ratification  by  the  State  of  North  Carolina.1  But  in 
order,  if  possible,  to  place  the  State  in  a position  to 
accede  to  the  Constitution  at  some  future  time,  and 
to  participate  fully  in  its  benefits,  they  also  declared, 
that,  having  thought  proper  neither  to  ratify  nor  to 
reject  it,  and  as  the  new  Congress  would  probably 

1 This  resolution  was  adopted  nays.  North  Carolina  Debates, 
August  2,  1788,  by  184  yeas  to  84  Elliot,  IV.  250,  251. 


598 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


lay  an  impost  on  goods  imported  into  the  States 
which  had  adopted  it,  they  recommended  the  legis- 
lature of  North  Carolina  to  lay  a similar  impost  on 
goods  imported  into  the  State,  and  to  appropriate 
the  money  arising  from  it  to  the  use  of  Congress.1 

The  elements  which  formed  the  opposition  to  the 
Constitution  in  other  States  received  in  Rhode  Island 
an  intense  development  and  aggravation,  from  the 
peculiar  spirit  of  the  people,  and  from  certain  local 
causes,  the  history  of  which  has  never  been  fully 
written,  and  is  now  only  to  be  gathered  from  scat- 
tered sources.  Constitutional  government  was  ex- 
posed to  great  perils,  in  that  day,  throughout  the 
country,  in  consequence  of  the  false  notions  of  State 
sovereignty  and  of  public  liberty  which  prevailed 
everywhere.  But  it  seemed  as  if  all  these  causes  of 
opposition  and  distrust  had  centred  in  Rhode  Island, 
and  had  there  found  a theatre  on  which  to  exhibit 
themselves  in  their  worst  form.  Fortunately,  this 
theatre  was  so  small  and  peculiar,  as  to  make  the 
display  of  these  ideas  extremely  conspicuous. 

The  Colony  of  Rhode  Island  was  established  upon 
the  broadest  principles  of  religious  and  civil  freedom. 
Its  early  founders  and  rulers,  flying  from  religious 
persecution  in  the  other  New  England  Colonies,  had 
transmitted  to  their  descendants  a natural  jealousy  of 
other  communities,  and  a high  spirit  of  individual 
and  public  independence.  In  the  progress  of  time, 
as  not  infrequently  happens  in  such  communities, 
the  principles  on  which  the  State  was  founded  were 

1 North  Carolina  Debates,  Elliot,  IV.  250,  251. 


Ch.  IV.] 


RHODE  ISLAND. 


599 


falsely  interpreted  and  applied,  until,  in  the  minds 
of  a large  part  of  the  people,  they  had  come  to  mean 
a simple  aversion  to  all  but  the  most  democratic 
form  of  government.  No  successful  appeal  to  this 
hereditary  feeling  could  be  made  during  the  early 
part  of  the  Revolution,  against  the  interests  and  in- 
fluence of  the  confederacy,  because  the  early  and 
local  effect  of  the  Revolution  in  fact  coincided  with 
it.  But  when  the  Revolution  was  fairly  accom- 
plished, and  the  State  had  assumed  its  position  of 
absolute  sovereignty,  what  may  be  called  the  extreme 
individualism  of  the  people,  and  their  old  unfortu- 
nate relations  with  the  rest  of  New  England,  made 
them  singularly  reluctant  to  part  with  any  power  to 
the  confederated  States.  The  manifestations  of  this 
feeling  we  have  seen  all  along,  from  the  first  estab- 
lishment of  the  Confederation  down  to  the  period  at 
which  we  are  now  arrived. 

The  local  causes  which  gave  to  this  tendency  its 
utmost  activity,  at  the  time  of  the  formation  of  the 
Constitution  of  the  United  States*  were  the  following. 

First,  there  had  existed  in  the  State,  for  a consid- 
erable period,  a despotic  and  well-organized  party, 
known  as  the  paper-money  party.  This  faction  had 
long  controlled  the  legislation  of  the  State,  by  fur- 
nishing the  agricultural  classes,  in  the  shape  of  pa- 
per money,  with  the  only  circulating  medium  they 
had  ever  had  in  any  large  quantity ; and  they  were 
determined  to  extinguish  the  debt  of  the  State  by 
this  species  of  currency,  which  the  legislature  could, 
and  did,  depreciate  at  pleasure. 


600 


ADOPTION  OP  THE  CONSTITUTION.  [Book  V. 


Secondly,  there  existed,  to  a great  and  ludicrous 
extent,  a constant  antagonism  between  town  and 
country,  — between  the  agricultural  and  the  mercan- 
tile or  trading  classes ; and  this  hostility  was  espe- 
cially violent  and  active  between  the  people  of  the 
towns  of  Providence  and  Newport  and  the  people  of 
the  surrounding  and  the  more  remote  rural  districts.1 
The  paper-money  question  divided  the  inhabitants 
of  the  State  in  the  same  way.  The  loss  of  this  cir- 
culation would  deprive  the  agricultural  classes  of 
their  sole  currency.  They  kept  their  paper-money 
party,  therefore,  in  a state  of  constant  activity  ; and 
when  the  Constitution  of  the  United  States  appeared, 
this  was  an  organized  and  triumphant  party,  ready 
for  any  new  contest.  Finally,  there  prevailed  among 
the  country  party  a notion  that  the  maritime  advan- 
tages of  the  State  ought  in  some  way  to  be  made  use 
of,  for  obtaining  better  terms  with  the  general  gov- 


ernment than  could  be  had  under  the  Constitution, 
and  that  by  some  such  means  funds  could  be  ob- 
tained for  paying  their  most  urgent  debts. 

If  we  may  judge  of  the  spirit  and  the  acts  of  the 
majority  of  the  people  of  Rhode  Island,  at  this  time, 
by  the  manner  in  which  they  were  looked  upon 
throughout  the  rest  of  the  Union,  no  language  of 


1 The  march  of  the  country  peo- 
ple upon  Providence,  on  the  4th 
• of  July,  1788,  and  the  manner  in 
which  they  compelled  the  inhabi- 
tants of  the  town  to  abandon  their 
purpose  of  celebrating  the  adoption 
of  the  Constitution  by  nine  States, 
— dictating  even  their  toasts  and 


salutes,  — reads  more  like  a page  in 
Diedrich  Knickerbocker’s  History 
of  New  York  than  like  anything 
else-.  But  it  is  a veracious  as  well 
as  a most  amusing  story.  (See 
Staples’s  Annals  of  Providence, 
pp.  329-335.) 


Cii.  IV.] 


KHODE  ISLAND. 


601 


censure  can  be  too  strong  to  be  applied  to  them. 
They  were  regarded  and  spoken  of  everywhere, 
among  the  Federalists,  with  contempt  and  abhor- 
rence. Even  the  opposition'  in  other  States,  in  all 
their  arguments  against  the  Constitution,  never  ven- 
tured to  defend  the  people  of  Rhode  Island.  Ridicule 
and  scorn  were  heaped  upon  them  from  all  quarters 
of  the  country,  and  ardent  zealots  of  the  Federal 
press  urged  the  adoption  of  the  advice  which  they 
said  the  Grand  Seignior  had  given  to  the  king  of 
Spain,  with  respect  to  the  refractory  States  of  Hol- 
land, namely,  to  send  his  men  with  shovels  and  pick- 
axes,  and  throw  them  all  into  the  sea.  Such  an  un- 
dertaking, we  may  suppose,  might  have  proved  as 
difficult  on  this,  as  it  would  have  been  on  the  other 
side  of  the  Atlantic.  But  however  this  might  have 
been,  it  is  probable  that  the  natural  effect  of  their 
conduct  on  the  minds  of  men  in  other  States,  and  the 
treatment  they  received,  reacted  upon  the  people  of 
Rhode  Island,  and  made  them  still  more  tenacious 
and  persistent  in  their  wrongful  course. 

But  we  need  not  go  out  of  the  State  itself,  to  find 
proof  that  a majority  of  its  people  were  at  this  time 
violent,  arbitrary,  and  unenlightened,  both  as  to  their 
true  interests  and  as  to  the  principles  of  public  hon- 
esty. Determined  to  adhere  to  their  paper-money 
system,  they  did  not  pause  to  consider  and  to  discuss 
the  great  questions  respecting  the  Constitution,  — its 
bearing  upon  the  welfare  of  the  States,  — its  effect 
upon  public  liberty  and  social  order,  — the  necessity 
for  its  amendment  in  certain  particulars,  — which  led, 

76 


VOL.  II. 


602 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


in  the  conventions  of  the  other  States,  to  some  of  the 
most  important  debates  that  the  subjects  of  govern- 
ment and  free  institutions  have  ever  produced.  In- 
deed, they  resolved  to  stifle  all  such  discussions  at 
once ; or,  at  any  rate,  to  prevent  them  from  being 
had  in  an  assembly  whose  proceedings  would  be 
known  to  the  world.  When  the  General  Assembly 
received  the  Constitution,  at  their  session  in  October, 

1787,  they  directed  it  to  be  published  and  circulated 
among  the  inhabitants  of  the  State.  In  February, 

1788,  instead  of  calling  a convention,  they  referred 
the  adoption  of  the  Constituion  to  the  freemen  in 
their  several  town  meetings,  for  the  purpose  of  hav- 
ing it  rejected.  There  were  at  this  time  a little  more 
than  four  thousand  legal  voters  in  the  State.  The 
Federalists,  a small  minority,  indignant  at  the  course 
of  the  legislature,  generally  withdrew  from  the  meet- 
ings and  refused  to  vote.  The  result  was,  that  the 
people  of  the  State  appeared  to  be  nearly  unanimous 
in  rejecting  the  Constitution.1 

The  freemen  of  the  towns  of  Providence  and  New- 
port, thereupon  presented  petitions  to  the  General 
Assembly,  complaining  of  the  inconvenience  of  act- 
ing upon  the  proposed  Constitution  in  meetings  in 
which  the  people  of  the  seaport  towns  and  the  peo- 
ple of  the  country  could  not  hear  and  answer  each 
other’s  arguments,  or  agree  upon  the  amendments 
that  it  might  be  desirable  to  propose,  and  praying 
for  a State  convention.  Their  application  was  re- 

1 There  were  2,708  votes  thrown  against  it,  and  232  in  its  favor.  This 
occurred  in  March,  1788. 


Ch.  IV.] 


POSITION  OF  THE  UNION. 


603 


fused,  and  Rhode  Island  remained  in  this  position, 
at  the  time  when  the  question  of  organizing  the  new 
government  came  before  the  Congress  of  the  Confed- 
eration, in  July,  1788.  4 

Better  counsels  prevailed  with  her  people,  at  a 
later  period,  and  the  same  redeeming  virtue  and 
good  sense  were  at  length  triumphant,  which,  in 
still  more  recent  trials,  have  enabled  her  to  over- 
come error,  and  party  passion,  and  the  false  notions 
of  liberty  that  have  sometimes  prevailed  within  her 
borders.  As  the  stranger  now  traverses  her  little 
territory,  in  the  journey  of  a day,  and  beholds  her 
ample  enjoyment  of  all  civil  and  religious  blessings, 
— her  busy  towns,  her  fruitful  fields,  her  fair  seat  of 
learning,  crowning  her  thriving  capital,  her  free,  hap- 
py, and  prosperous  people,  her  noble  waters  where 
she  sits  enthroned  upon  her  lovely  isles,  — and  re- 
members her  ancient  and  her  recent  history,  he  can- 
not fail,  in  his  prayer  for  her  welfare,  to  breathe  the 
hope  that  an  escape  from  great  social  perils  may  be 
found  for  her  and  for  all  of  us,  in  the  future,  as  it  has 
been  in  the  past. 

But  the  attitudes  taken  by  North  Carolina  and 
Rhode  Island  — although  in  truth  quite  ditferent 
and  taken  from  very  ditferent  motives  — placed  the 
Union  in  a new  crisis,  involving  the  Constitution  in 
great  danger  of  being  defeated,  notwithstanding  its 
adoption  by  more  than  nine  States.  Both  of  them 
were  members  of  the  existing  confederacy ; both  had 
a right  to  vote  on  all  questions  coming  before  the 
Congress  of  that  confederacy ; and  it  was  to  this 


604 


ADOPTION  OF  THE  CONSTITUTION.  [Book  V. 


body  that  the  national  Convention  itself  had  looked 
for  the  initiatory  measures  necessary  to  organize  the 
new  government  under  the  Constitution.  The  ques- 
tion whether  that  government  should  be  organized 
at  all,  was  necessarily  involved  with  the  question  as 
to  the  place  where  it  should  be  directed  to  assemble 
and  to  exercise  its  functions.  This  latter  topic  had 
often  been  a source  of  dissension  between  the  States ; 
and  there  was  much  danger  lest  the  votes  of  North 
Carolina  and  Rhode  Island,  in  the  Congress  of  the 
Confederation,  by  being  united  with  the  votes  of 
States  opposed  to  the  selection  of  the  place  that 
might  be  named  as  the  seat  of  the  new  government, 
might  prevent  the  Constitution  from  being  estab- 
lished at  all. 

But  now,  the  pen  that  has  thus  traced  these  great 
events,  and  has  sought  to  describe  them  in  their  true 
relations  to  the  social  welfare  of  the  American  peo- 
ple, must  seek  repose.  How  the  Constitution  was 
inaugurated,  — by  whom  and  upon  what  principles 
it  was  put  into  operation,  — - how  and  why  it  was 
amended  or  altered,  — when  and  under  what  circum- 
stances the  two  remaining  States  accepted  its  bene- 
fits, — what  development  and  what  direction  it  re- 
ceived from  the  generation  of  statesmen  who  made 
and  established  it,  — belongs  to  the  next  epoch  in 
our  political  history,  the  Administration  of  Wash- 
ington. 


APPENDIX. 


! 

Boston,  March  20,  1858. 

Messrs.  Harper  & Brothers  : 

Gentlemen, — On  page  344  of  the  2d  volume  of  my  History  of  the  Constitution  of  the 
United  States,  occurs  the  following  foot-note  : 

“ See  the  note  on  the  authorship  of  the  Ordinance  of  178V,  in  the  Appendix  to  this  vol- 
ume.” 

On  turning  to  the  Appendix,  the  reader  will  find  no  such  note  as  is  thus  referred  to,  ' 
and  will  therefore  conclude  that  his  copy  is  imperfect.  But  this  is  not  the  case,  and  the 
foot-note  on  page  344  should  have  been  cancelled  in  printing.  Its  occurrence  there  is  to  be 
accounted  for  as  follows. 

When  writing  this  volume,  I prepared  an  elaborate  note,  for  the  purpose  of  proving  that 
the  Ordinance  of  1787  was  drawn  up  by  Nathan  Dane  ; and  this  note  I destined  for  the 
Appendix,  referring  to  it  by  the  foot-note  on  page  344  of  the  Text.  The  subsequent  publi- 
cation by  Mr.  Charles  King,  of  New  York,  of  an  autograph  letter  of  Mr.  Dane’s  to  his 
father,  the  Hon.  Rufus  King,  written  a few-davs  after  the  passage  of  the  Ordinance,  put  an 
end  to  all  possibility  of  controversy  on  this  subject,  and  made  it  unnecessary  for  me  to  bur- 
then my  readers  with  a discussion  of  Mr.  Dane’s  claim  to  be  regarded  as  the  author  of  that 
instrument.  Accordingly,  I struck  out  the  note  intended  for  my  Appendix  ; but  by  an 
oversight,  in  making  the  stereotype  plates,  the  foot-note  on  page  344  was  allowed  to  stand, 
and  it  was  not  until  after  the  plates  had  been  placed  in  your  hands  and  the  whole  edition 
had  been  printed  and  bound,  that  I discovered  this  error. 

Very  truly, 

Your  friend  and  servant, 

GEO.  T.  CURTIS. 

The  following  sentence  in  Mr.  Dane’s  Letter  to  Mr.  King  is  decisive  of  the  point  which 
has  sometimes  been  controverted  : 

“ When  I drew  the  Ordinance,  ( which  passed,  a few  words  excepted,  as  I originally 
formed  it,)  I had  no  idea  the  States  would  agree  to  the  sixth  article,  prohibiting  slavery,  as 
only  Massachusetts,  of  the  Eastern  States,  was  present,  and  therefore  omitted  it  in  the  draft; 
but,  finding  the  House  favorably  disposed  on  the  subject,  after  we  had  completed  the  other 
parts,  I moved  the  article,  which  was  agreed  to  without  opposition.” 


■ 


■ 


. 


I 


APPENDIX. 


CONSTITUTION 

OF 

THE  UNITED  STATES  OF  AMERICA* 


We  the  People  of  the  United  States,  in  order  to  form  a more  perfect 
Union,  establish  Justice,  insure  domestic  Tranquillity,  provide  for  the 
common  defence,  promote  the  general  Welfare,  and  secure  the  Bless- 
ings of  Liberty  to  ourselves  and  our  Posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America. 

ARTICLE.  I. 

Section.  1.  All  legislative  Powers  herein  granted  shall  be  vested 
in  a Congress  of  the  United  States,  which  shall  consist  of  a Senate  and 
House  of  Representatives. 

Section.  2.  tThe  House  of  Representatives  shall  be  composed  of 
Members  chosen  every  second  Year  by  the  People  of  the  several  States, 
and  the  Electors  in  each  State  shall  have  the  Qualifications  requisite  for 
Electors  of  the  most  numerous  Branch  of  the  State  Legislature. 

2No  Person  shall  be  a Representative  who  shall  not  have  attained  to 
the  Age  of  twenty  five  Years,  and  been  seven  Years  a Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant  of  that 
State  in  which  he  shall  be  chosen. 

Representatives  and  direct  Taxes  shall  be  apportioned  among  the 
several  States  which  may  be  included  within  this  Union,  according  to 
their  respective  Numbers,  which  shall  be  determined  by  adding  to  the 


* This  copy  of  the  Constitution  has  been  compared  with  the  Rolls  in  the 
Department  of  State,  and  is  punctuated  and  otherwise  printed  in  exact  con- 
formity therewith. 


608 


APPENDIX. 


whole  Number  of  free  Persons,  including  those  bound  to  Service  for  a 
Term  of  Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all  other 
Persons.  The  actual  Enumeration  shall  be  made  within  three  Years 
after  the  first  Meeting  of  the  Congress  of  the  United  States,  and  within 
every  subsequent  Term  of  ten  Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Representatives  shall  not  exceed  one  for 
every  thirty  Thousand,  but  each  State  shall  have  at  Least  one  Repre- 
sentative ; and  until  such  enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode- 
Island  and  Providence  Plantations  one,  Connecticut  five,  New- York  six, 
New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Vir- 
ginia ten,  North  Carolina  five,  South  Carolina  five,  and  Georgia  three. 

4When  vacancies  happen  in  the  Representation  from  any  State,  the 
Executive  Authority  thereof  shall  issue  Writs  of  Election  to  fill  such 
Vacancies. 

5The  House  of  Representatives  shall  chuse  their  Speaker  and  other 
Officers ; and  shall  have  the  sole  Power  of  Impeachment. 

Section.  3.  JThe  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature  thereof,  for  six 
Years  ; and  each  Senator  shall  have  one  Vote. 

immediately  after  they  shall  be  assembled  in  Consequence  of  the 
first  Election,  they  shall  be  divided  as  equally  as  may  be  into  three 
Classes.  The  Seats  of  the  Senators  of  the  first  Class  shall  be  vacated  at  the 
Expiration  of  the  second  Year,  of  the  second  Class  at  the  Expiration  of 
the  fourth  Year,  and  of  the  third  Class  at  the  Expiration  of  the  sixth  Year, 
so  that  one-third  may  be  chosen  every  second  Year ; and  if  Vacancies 
happen  by  Resignation,  or  otherwise,  during  the  Recess  of  the  Legisla- 
ture of  any  State,  the  Executive  thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies. 

3No  Person  shall  be  a Senator  who  shall  not  have  attained  to  the  Age 
of  thirty  Years,  and  been  nine  Years  a Citizen  of  the  United  States,  and 
who  shall  not,  when  elected,  be  an  Inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

4The  Vice  President  of  the  United  States  shall  be  President  of  the 
Senate,  but  shall  have  no  Vote,  unless  they  be  equally  divided. 

5The  Senate  shall  chuse  their  other  Officers,  and  also  a President  pro 
tempore,  in  the  Absence  of  the  Vice  President,  or  when  he  shall  exercise 
the  office  of  President  of  the  United  States. 

6The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments. 
When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation. 


CONSTITUTION  OF  THE  UNITED  STATES.  609 


When  the  President  of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside  : And  no  Person  shall  be  convicted  without  the  Concurrence  of 
two  thirds  of  the  Members  present. 

^Judgment  in  Cases  of  Impeachment  shall  not  extend  further  than  to 
removal  from  Office,  and  Disqualification  to  hold  and  enjoy  any  Office  of 
honour,  Trust  or  Profit  under  the  United  States : but  the  Party  con- 
victed shall  nevertheless  be  liable  and  subject  to  Indictment,  Trial,  Judg- 
ment and  Punishment,  according  to  Law. 

Section.  4.  JThe  Times,  Places  and  Manner  of  holding  Elections 
for  Senators  and  Representatives,  shall  be  prescribed  in  each  State  by 
the  Legislature  thereof ; but  the  Congress  may  at  any  time  by  Law  make 
or  alter  such  Regulations,  except  as  to  the  Places  of  chusing  Senators. 

2The  Congress  shall  assemble  at  least  once  in  every  Year,  and  such 
Meeting  shall  be  on  the  first  Monday  in  December,  unless  they  shall  by 
Law  appoint  a different  Day. 

Section.  5.  1Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a Majority  of  each 
shall  constitute  a Quorum  to  do  business;  but  a smaller  Number  may 
adjourn  from  day  to  day,  and  may  be  authorized  to  compel  the  Attend- 
ance of  absent  Members,  in  such  Manner,  and  under  such  Penalties  as 
each  House  may  provide. 

2Each  House  may  determine  the  Rules  of  its  Proceedings,  punish  its 
Members  for  disorderly  Behaviour,  and,  with  the  Concurrence  of  two 
thirds,  expel  a Member. 

3Each  House  shall  keep  a Journal  of  its  Proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  Parts  as  may  in  their  Judgment 
require  Secrecy ; and  the  Yeas  and  Nays  of  the  Members  of  either 
House  on  any  question  shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

4Neither  House,  during  the  Session  of  Congress,  shall,  without  the 
Consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to  any  other 
Place  than  that  in  which  the  two  Houses  shall  be  sitting. 

Section.  6.  4The  Senators  and  Representatives  shall  receive  a 
Compensation  for  their  Services,  to  be  ascertained  by  Law,  and  paid  out 
of  the  Treasury  of  the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony  and  Breach  of  the  Peace,  be  privileged  from  Arrest 
during  their  Attendance  at  the  Session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same  ; and  for  any  Speech  or  Debate  in 
either  House,  they  shall  not  be  questioned  in  any  other  Place. 

2No  Senator  or  Representative  shall,  during  the  Time  for  which  he 
was  elected,  be  appointed  to  any  civil  Office  under  the  Authority  of  the 

vol.  ii.  77 


610 


APPENDIX. 


United  States,  which  shall  have  been  created,  or  the  Emoluments 
whereof  shall  have  been  enereased  during  such  time ; and  no  Person 
holding  any  Office  under  the  United  States,  shall  be  a Member  of  either 
House  during  his  Continuance  in  Office. 

Section.  7.  hAll  Bills  for  raising  Revenue  shall  originate  in  the 
House  of  Representatives ; but  the  Senate  may  propose  or  concur  with 
Amendments  as  on  other  Bills. 

2Every  Bill  which  shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  become  a Law,  be  presented  to  the  President 
of  the  United  States ; If  he  approve  he  shall  sign  it,  but  if  not  he  shall 
return  it,  with  his  Objections  to  that  House  in  which  it  shall  have  origi- 
nated, who  shall  enter  the  Objections  at  large  on  their  Journal,  and  pro- 
ceed to  reconsider  it.  If  after  such  Reconsideration  two  thirds  of  that 
House  shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together  with  the  Ob- 
jections, to  the  other  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two  thirds  of  that  House,  it  shall  become  a Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined  by 
yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and  against  the 
Bill  shall  be  entered  on  the  Journal  of  each  House  respectively.  If  any 
Bill  shall  not  be  returned  by  the  President  within  ten  Days  (Sundays 
excepted)  after  it  shall  have  been  presented  to  him,  the  Same  shall  be 
a Law,  in  like  Manner  as  if  he  had  signed  it,  unless  the  Congress  by 
their  Adjournment  prevent  its  Return,  in  which  Case  it  shall  not  be  a 
Law. 

3Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on  a 
question  of  Adjournment)  shall  be  presented  to  the  President  of  the 
United  States  ; and  before  the  same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  repassed  by  two  thirds  of 
the  Senate  and  House  of  Representatives,  according  to  the  Rules  and 
Limitations  prescribed  in  the  Case  of  a Bill. 

Section.  8.  The  Congress  shall  have  Power  4To  lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide  for 
the  common  Defence  and  general  Welfare  of  the  United  States  ; but  all 
Duties,  Imposts  and  Excises  shall  be  uniform  throughout  the  United 
States ; 

2To  borrow  Money  on  the  credit  of  the  United  States ; 

3To  regulate  Commerce  with  foreign  Nations,  and  among  the  several 
States,  and  with  the  Indian  Tribes ; 

4To  establish  an  uniform  Rule  of  Naturalization,  and  uniform  Laws  on 
the  subject  of  Bankruptcies  throughout  the  United  States; 


CONSTITUTION  OF  THE  UNITED  STATES.  611 


5To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin,  and 
fix  the  Standard  of  Weights  and  Measures; 

6To  provide  for  the  Punishment  of  counterfeiting  the  Securities  and 
current  Coin  of  the  United  States ; 

7To  establish  Post  Offices  and  post  Roads ; 

8To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing  for 
limited  Times  to  Authors  and  Inventors  the  exclusive  Right  to  their 
respective  Writings  and  Discoveries; 

9To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

10To  define  and  punish  Piracies  and  Felonies  committed  on  the  high 
Seas,  and  Offences  against  the  Law  of  Nations  ; 

nTo  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and  make 
Rules  concerning  Captures  on  Land  and  Water; 

12To  raise  and  support  Armies,  but  no  Appropriation  of  Money  to 
that  Use  shall  be  for  a longer  Term  than  two  Years; 

13To  provide  and  maintain  a Navy ; 

14To  make  Rules  for  the  Government  and  Regulation  of  the  land  and 
naval  Forces ; 

,5To  provide  for  calling  forth  the  Militia  to  execute  the  Laws  of  the 
Union,  suppress  Insurrections  and  repel  Invasions ; 

16To  provide  for  organizing,  arming,  and  disciplining,  the  Militia,  and 
for  governing  such  Part  of  them  as  may  be  employed  in  the  Service  of 
the  United  States,  reserving  to  the  States  respectively,  the  Appointment 
of  the  Officers,  and  the  Authority  of  training  the  Militia  according  to  the 
discipline  prescribed  by  Congress  ; 

17To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over  such 
District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession  of  particu- 
lar States,  and  the  Acceptance  of  Congress,  become  the  Seat  of  the  Gov- 
ernment of  the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of  the  State  in  which 
the  same  shall  be,  for  the  Erection  of  Forts,  Magazines,  Arsenals,  Dock- 
Yards,  and  other  needful  Buildings ; — And 

18To  make  all  Laws  which  shall  be  necessary  and  proper  for  carrying 
into  Execution  the  foregoing  Powers,  and  all  other  Powers  vested  by  this 
Constitution  in  the  Government  of  the  United  States,  or  in  any  Depart- 
ment or  Officer  thereof. 

Section.  9.  'The  Migration  or  Importation  of  such  Persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  Year  one  thousand  eight  hundred 
and  eight,  but  a Tax  or  Duty  may  be  imposed  on  such  Importation,  not 
exceeding  ten  dollars  for  each  Person. 


612 


APPENDIX. 


2The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  suspended, 
unless  when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety  may 
require  it. 

3No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

4No  Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in  Proportion 
to  the  Census  or  Enumeration  herein  before  directed  to  be  taken. 

5No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any  State. 

6No  Preference  shall  be  given  by  any  Regulation  of  Commerce  or 
Revenue  to  the  Ports  of  one  State  over  those  of  another : nor  shall 
Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter,  clear,  or  pay 
Duties  in  another. 

7No  Money  shall  be  drawn  from  the  Treasury,  but  in  consequence  of 
Appropriations  made  by  Law  ; and  a regular  Statement  and  Account  of 
the  Receipts  and  Expenditures  of  all  public  Money  shall  be  published 
from  time  to  time. 

8No  Title  of  Nobility  shall  be  granted  by  the  United  States : And  no 
Person  holding  any  Office  of  Profit  or  Trust  under  them,  shall,  without 
the  Consent  of  the  Congress,  accept  of  any  present,  Emolument,  Office, 
or  Title,  of  any  kind  whatever,  from  any  King,  Prince,  or  foreign  State. 

Section.  10.  4No  State  shall  enter  into  any  Treaty,  Alliance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin  Money; 
emit  Bills  of  Credit ; make  any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts ; pass  any  Bill  of  Attainder,  ex  post  facto 
Law,  or  Law  impairing  the  Obligation  of  Contracts,  or  grant  any  Title  of 
Nobility. 

2No  State  shall,  without  the  Consent  of  the  Congress,  lay  any  Imposts 
or  Duties  on  Imports  or  Exports,  except  what  may  be  absolutely  neces- 
sary for  executing  it’s  inspection  Laws : and  the  net  Produce  of  all  Duties 
and  Imposts,  laid  by  any  State  on  Imports  or  Exports,  shall  be  for  the 
Use  of  the  Treasury  of  the  United  States  ; and  all  such  Laws  shall  be 
subject  to  the  Revision  and  Controul  of  the  Congress. 

3No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty  of 
Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter  into 
any  Agreement  or  Compact  with  another  State,  or  with  a foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such  imminent  Danger 
as  will  not  admit  of  Delay. 

ARTICLE.  II. 

Section.  1.  JThe  executive  Power  shall  be  vested  in  a President  of 
the  United  States  of  America.  He  shall  hold  his  Office  during  the  Term 
of  four  Years,  and,  together  with  the  Vice  President,  chosen  for  the  same 
Term,  be  elected,  as  follows 


CONSTITUTION  OF  THE  UNITED  STATES.  613 


2Each  State  shall  appoint,  in  such  Manner  as  the  Legislature  thereof 
may  direct,  a Number  of  Electors,  equal  to  the  whole  Number  of  Sen- 
ators and  Representatives  to  which  the  State  may  be  entitled  in  the  Con- 
gress : but  no  Senator  or  Representative,  or  Person  holding  an  Office  of 
Trust  or  Profit  under  the  United  States,  shall  be  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States,  and  vote  by  Ballot 
for  two  Persons,  of  whom  one  at  least  shall  not  be  an  Inhabitant  of  the 
same  State  with  themselves.  And  they  shall  make  a List  of  all  the  Per- 
sons voted  for,  and  of  the  Number  of  Votes  for  each ; which  List  they 
shall  sign  and  certify,  and  transmit  sealed  to  the  Seat  of  the  Government 
of  the  United  States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  Presence  of  the  Senate  and  House 
of  Representatives,  open  all  the  Certificates,  and  the  Votes  shall  then  be 
counted.  The  Person  having  the  greatest  Number  of  Votes  shall  be  the 
President,  if  such  Number  be  a Majority  of  the  whole  Number  of  Elec- 
tors appointed ; and  if  there  be  more  than  one  who  have  such  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House  of  Representatives 
shall  immediately  chuse  by  Ballot  one  of  them  for  President ; and  if  no 
Person  have  a Majority,  then  from  the  five  highest  on  the  List  the  said 
House  shall  in  like  Manner  chuse  the  President.  But  in  chusing  the 
President,  the  Votes  shall  be  taken  by  States,  the  Representation  from 
each  State  having  one  Vote ; A quorum  for  this  Purpose  shall  consist  of 
a Member  or  Members  from  twothirds  of  the  States,  and  a Majority  of 
all  the  States  shall  be  necessary  to  a Choice.  In  every  Case,  after  the 
Choice  of  the  President,  the  Person  having  the  greatest  Number  of  Votes 
of  the  Electors  shall  be  the  Vice  President.  But  if  there  should  remain 
two  or  more  who  have  equal  Votes,  the  Senate  shall  chuse  from  them  by 
Ballot  the  Vice  President.* 

3The  Congress  may  determine  the  Time  of  chusing  the  Electors,  and 
the  Day  on  which  they  shall  give  their  Votes;  which  Day  shall  be  the 
same  throughout  the  United  States. 

4No  Person  except  a natural  born  Citizen,  or  a Citizen  of  the  United 
States,  at  the  time  of  the  Adoption  of  this  Constitution,  shalNbe  eligible 
to  the  Office  of  President ; neither  shall  any  Person  be  eligible  to  that 
Office  who  shall  not  have  attained  to  the  Age  of  thirty  five  Years,  and 
been  fourteen  Years  a Resident  within  the  United  States. 

5In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his  Death, 
Resignation,  or  Inability  to  discharge  the  Powers  and  Duties  of  the  said 
Office,  the  same  shall  devolve  on  the  Vice  President,  and  the  Congress 


* Altered  by  the  12th  Amendment. 


614 


APPENDIX. 


may  by  Law  provide  for  tbe  Case  of  Removal,  Death,  Resignation  or 
Inability,  both  of  the  President  and  Vice  President,  declaring  what 
Officer  shall  then  act  as  President,  and  such  Officer  shall  act  accord- 
ingly, until  the  Disability  be  removed,  or  a President  shall  be  elected. 

6The  President  shall,  at  stated  Times,  receive  for  his  Services,  a Com- 
pensation, which  shall  neither  be  encreased  nor  diminished  during  the 
Period  for  which  he  shall  have  been  elected,  and  he  shall  not  receive 
within  that  Period  any  other  Emolument  from  the  United  States,  or  any 
of  them. 

7Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the  fol- 
lowing Oath  or  Affirmation  : — 

“ I do  solemnly  swear  (or  affirm)  that  I will  faithfully  execute  the 
“ Office  of  President  of  the  United  States,  and  will  to  the  best  of  my 
“ Ability,  preserve,  protect  and  defend  the  Constitution  of  the  United 
“ States.” 

Section.  2.  xThe  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia  of  the  several 
States,  when  called  into  the  actual  Service  of  the  United  States ; he  may 
require  the  Opinion,  in  writing,  of  the  principal  Officer  in  each  of  the 
executive  Departments,  upon  any  Subject  relating  to  the  Duties  of  their 
respective  Offices,  and  he  shall  have  Power  to  grant  Reprieves  and  Par- 
dons for  Offences  against  the  United  States,  except  in  Cases  of  Impeach- 
ment. 

2He  shall  have  Power,  by  and  with  the  Advice  and  Consent  of  the 
Senate,  to  make  Treaties,  provided  two  thirds  of  the  Senators  present 
concur;  and  he  shall  nominate,  and  by  and  with  the  Advice  and  Con- 
sent of  the  Senate,  shall  appoint  Ambassadors,  other  public  Ministers 
and  Consuls,  Judges  of  the  supreme  Court,  and  all  other  Officers  of  the 
United  States,  whose  Appointments  are  not  herein  otherwise  provided 
for,  and  which  shall  be  established  by  Law : but  the  Congress  may  by 
Law  vest  the  Appointment  of  such  inferior  Officers,  as  they  think  proper, 
in  the  President  alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Depart- 
ments. 

3The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may  hap- 
pen during  the  Recess  of  the  Senate,  by  granting  Commissions  which 
shall  expire  at  the  End  of  their  next  Session. 

Section.  3.  He  shall  from  time  to  time  give  to  the  Congress  Infor- 
mation of  the  State  of  the  Union,  and  recommend  to  their  Consideration 
such  Measures  as  he  shall  judge  necessary  and  expedient ; he  may,  on 
extraordinary  Occasions,  convene  both  Houses,  or  either  of  them,  and  in 
Case  of  Disagreement  between  them,  with  Respect  to  the  time  of  Ad- 


CONSTITUTION  OF  THE  UNITED  STATES.  615 


joumment,  he  may  adjourn  them  to  such  Time  as  he  shall  think  proper ; 
he  shall  receive  Ambassadors  and  other  public  Ministers ; he  shall  take 
Care  that  the  Laws  be  faithfully  executed,  and  shall  Commission  all  the 
officers  of  the  United  States. 

Section.  4.  The  President,  Vice  President  and  all  civil  Officers  of 
the  United  States,  shall  be  removed  from  Office  on  Impeachment  for, 
and  Conviction  of,  Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

ARTICLE  m. 

Section.  1 . The  judicial  Power  of  the  United  States,  shall  be  vested 
in  one  supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  Judges,  both  of  the  supreme 
and  inferior  Courts,  shall  hold  their  Offices  during  good  Behavior,  and 
shall,  at  stated  Times,  receive  for  their  Services,  a Compensation,  which 
shall  not  be  diminished  during  their  Continuance  in  Office. 

Section.  2.  !The  judicial  Power  shall  extend  to  all  Cases,  in  Law 
and  Equity,  arising  under  this  Constitution,  the  Laws  of  the  United 
States,  and  Treaties  made,  or  which  shall  be  made,  under  their  Author- 
ity ; — to  all  Cases  affecting  Ambassadors,  other  public  Ministers,  and 
Consuls  ; — to  all  Cases  of  admiralty  and  maritime  Jurisdiction  ; — to 
Controversies  to  which  the  United.  States  shall  be  a Party ; — to  Contro- 
versies between  two  or  more  States ; — between  a State  and  Citizens  of 
another  State  ; — between  Citizens  of  different  States,  — between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of  different  States, 
and  between  a State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens 
or  Subjects. 

2In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and  Con- 
suls, and  those  in  which  a State  shall  be  Party,  the  supreme  Court  shall 
have  original  Jurisdiction.  In  all  the  other  Cases  before  mentioned,  the 
supreme  Court  shall  have  appellate  Jurisdiction,  both  as  to  Law  and 
Faet,  with  such  Exceptions*  and  under  such  Regulations  as  the  Congress 
shall  make. 

3The  Trial  of  all'  Crimes*  except  in  Cases  of  Impeachment,  shall  be  by 
Jury ; and  such  Trial  shall  be  held  in  the  State  where  the  said  Crimes 
shall  have  been  committed;  but  when  not  committed  within  any  State, 
the  Trial  shall  be  at  such  Place'  or  Places  as  the  Congress  may  by  Law 
have  directed. 

Section.  3.  treason  against  the-  United  States,  shall  consist  only 
in  levying  War  against  them,  or  in  adhering  to  their  Enemies,  giving 
them  Aid  and  Comfort.  No  Person  shall  be  convicted  of  Treason  unless 


616 


APPENDIX. 


on  the  Testimony  of  two  Witnesses  to  the  same  overt  Act,  or  on  Confes- 
sion in  open  Court. 

2The  Congress  shall  have  Power  to  declare  the  Punishment  of  Treason, 
but  no  Attainder  of  Treason  shall  work  Corruption  of  Blood,  or  Forfeit- 
ure except  during  the  Life  of  the  Person  attainted. 

ARTICLE.  IV. 

Section.  1.  Full  Faith  and  Credit  shall  be  given  in  each  State  to 
the  public  Acts,  Records,  and  judicial  Proceedings  of  every  other  State. 
And  the  Congress  may  by  general  Laws  prescribe  the  Manner  in  which 
such  Acts,  Records  and  Proceedings  shall  be  proved,  and  the  Effect 
thereof. 

Section.  2 1The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

2A  Person  charged  in  any  State  with  Treason,  Felony,  or  other  Crime, 
who  shall  flee  from  Justice,  and  be  found  in  another  State,  shall  on  De- 
mand of  the  executive  Authority  of  the  State  from  which  he  fled,  be  de- 
livered up,  to  be  removed  to  the  State  having  Jurisdiction  of  the  Crime. 

3No  Person  held  to  Service  or  Labour  in  one  State,  under  the  Laws 
thereof,  escaping  into  another,  shall,  in  Consequence  of  any  Law  or  Reg- 
ulation therein,  be  discharged  from  such  Service  or  Labour,  but  shall  be 
delivered  up  on  Claim  of  the  Party  to  whom  such  Service  or  Labour 
may  be  due. 

Section.  3.  xNew  States  may  be  admitted  by  the  Congress  into 
this  Union ; but  no  new  State  shall  be  formed  or  erected  within  the 
Jurisdiction  of  any  other  State ; nor  any  State  be  formed  by  the  Junc- 
tion of  two  or  more  States,  or  Parts  of  States,  without  the  Consent  of 
the  Legislatures  of  the  States  concerned  as  well  as  of  the  Congress. 

2The  Congress  shall  have  Power  to  dispose  of  and  make  all  needful 
Rules  and  Regulations  respecting  the  Territory  or  other  Property  be- 
longing to  the  United  States ; and  nothing  in  this  Constitution  shall  be 
so  construed  as  to  Prejudice  any  Claims  of  the  United  States,  or  of  any 
particular  State. 

Section.  4.  The  United  States  shall  guarantee  to  every  State  in 
this  Union  a Republican  Form  of  Government,  and  shall  protect  each  of 
them  against  Invasion ; and  on  Application  of  the  Legislature,  or  of  the 
Executive  (when  the  Legislature  cannot  be  convened)  against  domestic 
Violence. 

ARTICLE.  V. 

The  Congress,  whenever  two  thirds  of  both  Houses  shall  deem  it 


CONSTITUTION  OF  THE  UNITED  STATES.  617 


necessary,  shall  propose  Amendments  to  this  Constitution,  or,  on  the  Ap- 
plication of  the  Legislatures  of  two  thirds  of  the  several  States,  shall  call  a 
Convention  for  proposing  Amendments,  which,  in  either  Case,  shall  be 
valid  to  all  Intents  and  Purposes,  as  Part  of  this  Constitution,  when  rati- 
fied by  the  Legislatures  of  three  fourths  of  the  several  States,  or  by  Con- 
ventions in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratifi- 
cation may  be  proposed  by  the  Congress  ; Provided  that  no  Amendment 
which  may  be  made  prior  to  the  Year  one  thousand  eight  hundred  and 
eight  shall  in  any  Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article  ; and  that  no  State,  without  its  Consent,  shall 
be  deprived  of  its  equal  Suffrage  in  the  Senate. 

ARTICLE.  VI. 

1 All  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against  the  United  States 
under  this  Constitution,  as  under  the  Confederation. 

aThis  Constitution,  and  the  Laws  of  the  United  States  which  shall  be 
made  in  Pursuance  thereof ; and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall  be  the  supreme 
Law  of  the  Land  ; and  the  Judges  in  every  State  shall  be  bound  thereby, 
any  Thing  in  the  Constitution  or  Laws  of  any  State  to  the  Contrary 
notwithstanding. 

3The  Senators  and  Representatives  before  mentioned,  and  the  Mem- 
bers of  the  several  State  Legislatures,  and  all  executive  and  judicial  Offi- 
cers, both  of  the  United  States  and  of  the  several  States,  shall  be  bound 
by  Oath  or  Affirmation,  to  support  this  Constitution ; but  no  religious 
Test  shall  ever  be  required  as  a Qualification  to  any  Office  or  public 
Trust  under  the  United  States. 

ARTICLE.  VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be  sufficient 
for  the  Establishment  of  this  Constitution  between  the  States  so  ratifying 
the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States  present 
the  Seventeenth  Day  of  September  in  the  Year  of  our  Lord  one 
thousand  seven  hundred  and  Eighty  seven  and  of  the  Independance 
of  the  United  States  of  America  the  Twelfth  In  Wi!  uoss  where- 
of We  have  hereunto  subscribed  our  Names, 

G<?  WASHINGTON — 
Presidt  and  Deputy  from  Virginia 


VOL.  II. 


78 


618 


APPENDIX. 


( 


NEW  HAMPSHIRE. 

John  Langdon,  Nicholas  Gilman. 


MASSACHUSETTS. 

Nathaniel  Gorham,  Rufus  King. 

CONNECTICUT. 

Wm.  Saml.  Johnson,  Roger  Sheehan. 

NEW  YORK. 

Alexander  Hamilton. 

NEW  JERSEY. 

Wil  : Livingston,  David  Breaelet, 

Wm.  Paterson,  Jona.  Dayton. 

PENNSYLVANIA. 

B.  Franklin,  Thomas  Mifflin, 

Robt.  Morris,  Geo  : Clymer, 

Tho?  Fitz  Simons,  Jared  Ingersoll, 

James  Wilson,  Gouv  : Morris. 

DELAWARE. 

Geo  : Read,  Gunning  Bedford,  jun. 

John  Dickinson,  Richard  Bassett. 

Jacq : Broom; 

MARYLAND. 

James  M’Henry,  Dan  : of  St.  Thos.  Jenifer, 

Danl.  Carroll. 


John  Blair, 


VIRGINIA. 

James  Madison,  Jr. 


tfORTH 

Wm.  Blount, 

Hu.  Williamson. 

SOUTH 


CAROLINA. 

Rich’d  Dobbs  Sfaight. 

CAROLINA. 


J.  Rutledge,  Charles  Coteswokth  Pinckney, 

Charles  Pinckney,  Pierce  Butler. 


GEORGIA. 

William  Few,  Abb.  Baldwin. 


Attest : 


WILLIAM  JACKSON,  Secretary. 


CONSTITUTION  OF  THE  UNITED  STATES.  619 


ARTICLES 

IN  ADDITION  TO,  AND  AMENDMENT  OF, 

THE  CONSTITUTION  OF  THE  UNITED  STATES  OF 
AMERICA, 

PROPOSED  BY  CONGRESS,  AND  RATIFIED  BY  THE  LEGISLA- 
TURES OF  THE  SEVERAL  STATES,  PURSUANT  TO  THE  FIFTH 

ARTICLE  OF  THE  ORIGINAL  CONSTITUTION.* 

(ARTICLE  1.) 

Congress  shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press ; or  the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a redress  of  grievances. 

(ARTICLE  2.) 

A well  regulated  Militia,  being  necessary  to  the  security  of  a free 
State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall  not  be  in- 
fringed. 

(ARTICLE  HI.) 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house,  without 
the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a manner  to  be 
prescribed  by  law. 

(ARTICLE  IY.) 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be 
violated,  ahd  no  Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searched,  and  the  persons  or  things  to  be  seized. 

(ARTICLE  Y.) 

No  person  shall  be  held  to  answer  for  a capital,  or  otherwise  infamous 
crime,  unless  on  a presentment  or  indictment  of  a Grand  Jury,  except  in 

* Although  this  work  does  not  embrace  the  history  of  the  Amendments, 
they  are  printed  here  in  connection  with  the  Constitution,  for  the  convenience 
of  the  reader. 


620 


APPENDIX. 


cases  arising  in  the  land  or  naval  forces,  or  in  the  Militia,  when  in  actual 
service  in  time  of  War  or  public  danger ; nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or  limb  ; nor  shall 
be  compelled  in  any  Criminal  Case  to  be  a witness  against  himself,  nor 
be  deprived  of  life,  liberty,  or  property,  without  due  process  of  law  ; nor 
shall  private  property  be  taken  for  public  use,  without  just  compensation. 

(ARTICLE  VI.) 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation ; to  be  confronted  with  the  witnesses  against 
him ; to  have  Compulsory  process  for  obtaining  Witnesses  in  his  favour, 
and  to  have  the  Assistance  of  Counsel  for  his  defence. 

(ARTICLE  VII.) 

In  Suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved,  and  no  fact 
tried  by  a jury,  shall  be  otherwise  re-examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  common  law. 

(ARTICLE  VIII.) 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
cruel  and  unusual  punishments  inflicted. 

(ARTICLE  IX.) 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

(ARTICLE  X.) 

The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people. 

ARTICLE  XL 

The  Judicial  power  of  the  United  States  shall  not  be  construed  to  ex- 
tend to  any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  Citizens  of  another  State,  or  by  Citizens  or  Sub- 
jects of  any  Foreign  State. 

ARTICLE  XU. 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by  ballot 
for  President  and  Vice  President,  one  of  whom,  at  least,  shall  not  be  an 


CONSTITUTION  OF  THE  UNITED  STATES.  621 


inhabitant  of  the  same  state  with  themselves ; they  shall  name  in  their 
ballots  the  person  voted  for  as  President,  and  in  distinct  ballots  the  per- 
son voted  for  as  Vice-President,  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted  for  as  Vice-Pres- 
ident, and  of  the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate  ; — The  President  of  the 
Senate  shall,  in  presence  of  the  Senate  and  House  of  Representatives,  open 
all  the  certificates  and  the  votes  shall  then  be  counted ; — The  person  hav- 
ing the  greatest  number  of  votes  for  President,  shall  be  the  President,  if 
such  number  be  a majority  of  the  whole  number  of  Electors  appointed ; 
and  if  no  person  have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  states,  the  representation  from  each  state  having  one  vote ; a 
quorum  for  this  purpose  shall  consist  of  a member  or  members  from  two- 
thirds  of  the  states,  and  a majority  of  all  the  states  shall  be  necessary  to 
a choice.  And  if  the  House  of  Representatives  shall  not  choose  a Pres- 
ident whenever  the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice-President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional  disability  of 
the  President.  — The  person  having  the  greatest  number  of  votes  as 
Vice-President,  shall  be  the  Vice-President,  if  such  number  be  a majority 
of  the  whole  number  of  Electors  appointed,  and  if  no  person  have  a 
majority,  then  from  the  two  highest  numbers  on  the  list,  the  Senate  shall 
choose  the  Vice-President ; a quorum  for  the  purpose  shall  consist  of 
two-thirds  of  the  whole  number  of  Senators,  and  a majority  of  the  whole 
number  shall  be  necessary  to  a choice.  But  no  person  constitutionally 
ineligible  to  the  office  of  President  shall  be  eligible  to  that  of  Vice-Pres- 
ident of  the  United  States. 


INDEX 


A. 

Acquisition,  national  spirit  of,  reflec- 
tions on,  II.  312. 

Adams,  John,  delegate  to  first  Conti- 
nental Congress,  I.  13.  On  Wash- 
ington’s appointment  as  commander- 
in-chief,  42.  One  of  the  committee 
to  prepare  Declaration  of  Indepen- 
dence, 50.  His  account  of  the  Dec- 
laration, 82.  First  minister  to  Great 
Britain,  257.  Answer  to  his  com- 
plaints about  the  treaty,  257.  In- 
structed to  negotiate  treaty  with  the 
Netherlands,  280.  One  of  the  com- 
missioners to  procure  commercial 
treaties,  287.  Views  of,  respecting 
taxation  of  slaves,  II.  159.  Practice 
of,  respecting  cabinet,  409. 

Adams,  Samuel,  delegate  to  first 
Continental  Congress,  I.  13.  Re- 
serve of,  respecting  Constitution,  II. 
533.  Disapproves  of  Constitution, 

533.  Character  of,  534.  Position 
of,  in  convention  of  Massachusetts, 

534.  In  favor  of  Hancock’s  amend- 
ments to  Constitution,  538. 

Adams,  captain  in  the  Revolutionary 
naval  force,  I.  74. 

Address  of  the  Colonies  to  the  people 
of  Great  Britain,  J.  23. 

Admiralty  Jurisdiction,  criminal,  II. 
330.  Of  courts  of  United  States, 
445.  Under  Confederation,  445. 

Adoption  of  Constitution,  mode  of, 
recommended,  II.  372. 

Albany,  convention  of  Colonies  at,  in 
1753-54,  I.  8. 

Alexandria,  meeting  of  commissioners 
at,  from  Virginia  and  Maryland,  I. 
341. 

Alexandria  Commissioners,  visit  Gen- 
eral Washington,  I.  425.  Report 
of,  received  in  Virginia  legislature, 
426. 


Aliens,  rights  to  be  conceded  to,  in 
certain  treaties,  I.  280.  See  For- 
eigners. 


Allegiance  of  people  of  the  Colonies, 
transferred,  I.  52. 

Alliance.  See  Treaty  of  Alliance. 

Ambassadors,  proposed  appointment 
of,  by  Senate,  II.  223,  410 ; by  Pres- 
ident, 234.  Received  by  President, 
415.  To  be  nominated  by  President, 
418.  Jurisdiction  of  cases  affecting, 
444. 

Amendment  of  Constitution,  II.  84. 
Provision  for,  adopted  without  debate, 
177.  And  revolution,  distinction  be- 
tween, 473. 

Amendments  of  Constitution,  when  to 
be  proposed  by  Congress,  II.  268. 
How  to  be  proposed  and  adopted, 
473.  How  ratified,  477.  Power  to 
make,  limited,  477.  States  at  liberty 
to  propose,  486.  Proposed  by  Han- 
cock, 537  ; by  Massachusetts,  classi- 
fied, 539  ; by  South  Carolina,  548 ; 
by  Patrick  Henry,  580;  by  Virginia, 
581 ; by  New  York,  587,  588 ; by 
North  Carolina,  597.  Refused  in 
Maryland  convention,  543.  Proposed, 
not  made  conditions  of  adoption,  551. 

Amendments  of  Articles  of  Confedera- 
tion, how  made,  II.  84,  473,  481. 

America,  natural  advantages  of,  for 
commercial  pursuits,  II.  309.  Vari- 
ety of  climate  and  products  of,  309. 

American  Constitutions,  character  of,  L 
261. 


American  Feeling,  Washington’s  efforts 
to  create,  I.  110. 

American  People  perceive  the  insuffi- 
ciency of  State  governments,  I.  114. 
Early  familiarity  of,  with  the  princi- 
ples of  government,  117.  Perceive 
the  necessity  of  a union,  121.  See 
People  of  America. 

American  Revolution,  commencement 


624 


INDEX. 


of,  I.  3.  Attempt  to  alter  charter 
governments,  a principal  cause  of,  6. 
Found  local  legislatures  in  all  the 
Colonies,  7.  Fundamental  principle 
established  by,  379.  Object  and  ef- 
fects of,  II.  196.  Policy  which  led 
to,  real  cause  of,  238.  Effect  of,  on 
views  of  people  of  United  States, 
relating  to  government,  238. 

Annapolis,  general  commercial  con- 
vention at,  I.  326,  340,  350.  Recom- 
mends general  convention  to  revise 
the  federal  system,  349.  Recom- 
mendation, how  received,  351.  See 
Hamilton  and  Madison. 

Annapolis  Commissioners,  report  of, 
acted  upon  in  Congress,  I.  355. 

Anti-Federalists,  plan  of,  to  postpone 
action  of  Virginia  on  Constitution, 
II.  568.  See  Federalists. 

Appropriation  Bills,  provision  concern- 
ing, objected  to,  II.  147.  See  Money 
Bills  and  Revenue  Bills. 

Arms  of  the  United  States,  when  adopt- 
ed, I.  151. 

Armstrong,  John,  wrote  the  New- 
burgh Addresses,  I.  168. 

Army,  power  of  Congress  to  raise  and 
support,  II.  333.  Appropriation  of 
money  for  support  of,  333.  Power 
of  Congress  to  make  rules  for,  334. 
Standing,  repugnant  to  American 
feelings,  336.  Not  to  be  kept  by 
States  in  time  of  peace,  37 1 . Presi- 
dent commander-in-chief  of,  413. 
Power  of  President  to  employ,  413. 

Army  of  the  Revolution,  first  suggested, 

I.  31.  How  first  raised,  32.  State 
of,  when  Washington  arrived  at 
Cambridge,  55.  How  constituted, 
58.  Short  enlistments  in,  how  ac- 
counted for,  60.  Committee  of  Con- 
gress sent  to  examine,  60.  Discon- 
tents in,  79,  158,  186.  History  of, 
after  the  evacuation  of  Boston,  91. 
Reorganized,  91,92.  Defects  in  or- 
ganization of,  93.  Officers  of,  how 
appointed,  93;  how  treated  in  1776, 
94.  Bad  construction  of,  94,  96. 
Third  effort  of  Washington  to  reor- 
ganize, 109.  Embarrassments  and 
difficulties  attending,  110.  State  of, 
in  April,  1777,  111;  in  May,  1782, 
158. 

Arrest,  privilege  from,  II.  263. 

Arsenals,  authority  of  Congress  over, 

II.  340. 

Articles  of  Confederation,  I.  509.  Re- 
ported in  Congress,  and  recommend- 


ed to  the  States,  53,  104, 113.  Adop- 
tion of,  by  the  States,  124.  Amend- 
ments to,  proposed  by  the  States, 
128;  by  New  Jersey,  for  regula- 
tion of  commerce,  129.  Chief  obsta- 
cle to  the  completion  of,  131.  States 
urged  to  accede  to,  134.  Ratified  by 
New  Jersey,  135  ; by  Delaware,  135  ; 
by  Maryland,  136.  Completion  of, 
announced,  137.  Established  by  pa- 
tatriotic  sacrifices,  139.  Outline  of, 
142.  Construction  of  third  article  of, 
265.  Circular  letter  of  Congress,  rec- 
ommending adoption  of,  491.  Rep- 
resentation of  New  Jersey  respecting, 
493.  Act  of  New  Jersey  accepting, 
497.  Resolves  of  Delaware  respect- 
ing, 498.  Action  of  Maryland  on, 
501 ; of  New  York  on,  505.  Amend- 
ment of,  at  first  contemplated,  II.  16. 
How  altered,  84,  180,481.  Citizen- 
ship under,  206.  Effort  to  include 
in,  power  over  Western  Territory, 
341.  Admission  of  new  States  under, 
345.  On  what  terms  ratified  by  small- 
er States,  346.  Restraints  imposed 
on  States  by,  363.  Inter-state  privi- 
leges under,  447. 

Assemblies  in  Provincial  governments, 
how  constituted,  I.  4. 

Assembling,  one  of  the  common  law 
rights,  I.  23. 

Association,  drawn  up  by  House  of 
Burgesses  in  Virginia,  I.  12.  For 
non-importation,  &e.,  how  carried 
out  by  colonists,  24. 

Attainder,  Bills  of,  defined,  II.  360. 
Congress  prohibited  to  pass,  360. 
States  prohibited  to  pass,  368. 

Attestation  to  Constitution,  form  of,  H. 
485. 

B. 

Baldwin,  Abraham,  model  of  Sen- 
ate suggested  by,  II.  139.  Vote  and 
views  of,  respecting  representation  in 
Senate,  142. 

Baltimore,  public  rejoicings  in,  in  hon- 
or of  Constitution,  II.  543. 

Barnwell,  Robert,  in  favor  of 
Constitution,  II.  510.  Arguments 
of,  in  convention  of  South  Carolina, 
548. 

Belknap,  Dr.,  on  slavery  in  Massa- 
chusetts, II.  454. 

Bill  of  Rights,  want  of,  a strong  argu- 
ment with  some  against  Constitution, 
II.  498.  James  Wilson’s  views  re- 


INDEX. 


625 


specting,  522.  States  equally  divid- 
ed on  question  of,  in  Convention, 
523.  Considered  essential  by  Patrick 
Henrv,  554.  Proposed  by  Virginia, 
581. 

Bills  of  Credit,  power  to  emit,  prohib- 
ited to  States,  II.  328,  364.  Mean- 
ing of,  329. 

Boston,  occupied  by  royal  troops  in 
1774-75,  I.  27.  Invested  by  army 
under  General  Ward,  in  1775,  32. 
Reception  of  Constitution  by  people 
of,  II.  501.  Rejoicings  in,  in  honor 
of  Constitution,  540. 

Boundary,  Southern,  fixed  by  the 
Treaty  of  Peace,  I.  312.  Questions 
of,  proposed  to  be  determined  by 
Senate,  II.  223,  231  ; plan  respect- 
ing, 235.  Determination  of,  a judi- 
cial question,  232.  See  Western  Ter- 
ritory, Lands,  and  Northwestern  Ter- 
ritory. 

Bounties  offered  for  enlistment  in  1776, 
I.  93.  Additional,  offered  by  States, 
95  ; effect  of,  110. 

Bowdoin,  James,  delegate  to  first 
Continental  Congress,  I.  13.  Gov- 
ernor of  Massachusetts,  270.  Sup- 
presses Shays’s  rebellion,  270.  Mes- 
sage of,  suggesting  a general  conven- 
tion, 336. 

Brandywine,  battle  of  the,  force  en- 
gaged in,  I.  113. 

Bribery , by  executive,  dangers  of,  II. 
242. 

British  Colonies,  legislatures  of,  divided 
into  two  branches,  II.  132. 

Broughton,  Nicholas,  commander 
of  the  Hannah,  I.  74. 

Butler,  Pierce,  in  favor  of  the 
Constitution,  II.  510. 


C. 

Cabinet,  functions  of,  II.  407.  Views 
respecting,  in  Convention,  408.  Presi- 
dent may  require  opinions  of,  408. 
Constitutional  character  of,  409. 
Practice  of  first  three  Presidents  re- 
specting, 409. 

Captures,  power  of  Congress  to  regu- 
late, II.  330. 

Capitation  Tax,  report  of  committee  of 
detail  respecting,  II.  290.  Provision 
respecting,  adopted,  304. 

Carroll,  Charles,  proposition  of, 
for  asserting  right  of  United  States 
to  vacant  lands,  H.  353,  355. 

79 


Cases  arising  under  Constitution,  &c., 
meaning  of,  II.  430. 

Census,  periodical,  proposed  by  Wil- 
liamson of  North  Carolina,  II.  153. 
Vote  respecting,  153.  See  Federal 
Census 

Cessions  of  Northwestern  Territory,  II. 
342  Of  land  by  States  to  United 
States,  356.  See  Western  and  North- 
western Territory. 

Charleston,  rejoicings  in,  on  adoption 
of  Constitution,  II.  548. 

Charter,  of  William  and  Mary  to  Mas- 
sachusetts, I.  5 ; attempt  to  alter,  6. 
Inviolability  of,  23.  How  distin- 
guished from  constitution,  II.  7. 
Charter  Governments,  form  and  charac- 
ter of,  I.  5. 

Chase,  Samuel,  views  of,  respecting 
taxation  of  slaves,  II.  159. 

Checks  of  one  department  on  another, 
II.  301. 

Citizenship,  as  qualification  of  national 
officers,  II.  186,  188,  204;  of  sena- 
tors, 223.  State  rules  respecting, 
unlike,  199.  General  privileges  of, 
under  Confederation,  206,  448;  un- 
der Constitution,  448.  See  Naturali- 
zation. 

Clarke,  George  Rogers,  General, 
proceedings  of,  in  Kentucky,  I.  322. 
Clinton,  George,  message  of,  as 
Governor  of  New  York,  on  revenue 
system  of  1783,  I.  359.  Head  of 
party  in  New  York  opposed  to  Con- 
stitution, II.  502. 

Coinage  of  the  United  States,  origin 
of,  I.  443. 

Coit,  captain  in  the  Revolutionary 
naval  force,  I.  74. 

Colonies,  thirteen  English,  I.  3.  Ante- 
Revolutionary  governments  of,  3. 
Form  a union,  3.  No  union  of,  be- 
fore the  Revolution,  7.  Common 
grievances  of,  9.  People  of,  how 
descended,  9.  Rights  of,  how  to 
be  determined,  1 6 ; when  and  how 
stated,  20;  declaration  of,  22;  what 
included  in,  22  ; how  to  be  enforced, 
23.  Trade  of,  how  far  right  to  regu- 
late in  Parliament,  20.  Reduction 
of,  to  submission,  great  preparations 
for,  38.  Trade  with,  prohibited  by 
Parliament,  December,  1775,  38. 
Change  of,  into  States,  116.  Consti- 
tutional power  of,  II.  179. 

Commerce,  of  the  United  States,  I. 
276  ; capacity  of,  at  the  close  of  the 
war,  284.  Regulation  of,  a leading 


VOL.  II. 


626 


INDEX. 


object  of  Constitutional  Convention, 
II.  12;  became  an  exigency  of  the 
Union,  13;  how  provided  for,  by 
Virginia  plan,  90 ; if  universal,  must 
include  slave-trade,  285;  report  of 
committee  of  detail  respecting,  289 ; 
generally  conceded  to  general  gov- 
ernment as  necessary,  290 ; views  of 
Southern  statesmen  respecting,  290 ; 
by  Congress,  beneficial  to  North  and 
South  291 ; a power  conceded  by 
South  to  North,  291  ; indivisible, 
370;  reluctance  of  South  Carolina 
to  concede,  546.  Want  of  power 
over,  in  Confederation,  279.  Interest 
of,  in  different  States,  not  identical, 
291,  299.  Powers  of  government 
over,  influence  of,  311.  Necessities 
of,  basis  of  Constitution,  312.  See 
Regulation  of  Commerce. 

Commercial  Convention.  See  Annapo- 
lis and  Virginia. 

Commercial  Power  asked  for  by  Con- 
gress, I.  285.  Action  of  the  States 
respecting,  286. 

Commercial  Treaties,  want  of,  dis- 
played, 1. 277.  Existing  at  the  peace, 
279.  How  far  the  Confederation  com- 
petent to  make,  279.  Why  not  made 
with  England,  282.  Congress  endeav- 
ors to  get  power  to  make,  285.  At- 
tempt to  negotiate  without  power, 

286.  States  refuse  the  power  to  make, 

287.  Fruitless  efforts  of  the  commis- 
sioners to  negotiate,  289. 

Commission.  See  Commercial  Treaties 
and  John  Adams. 

Committee  of  Congress  sent  to  confer 
with  Washington,  I.  60,  93. 

Committee  of  the  States  under  the  Con- 
federation, I.  146. 

Committees  of  Correspondence  recom- 
mended by  Virginia,  I.  11.  Agency 
of,  12. 

Common  Law , one  of  the  rights  of  the 
Colonies,  I.  23.  And  equity,  distinc- 
tion between,  preserved  by  Constitu- 
tion, II.  425.  Basis  of  State  jurispru- 
dence, 425. 

Commutation.  See  Half-Pay. 

Compromises  between  national  and  fed- 
eral systems,  II.  102,  104.  Lie  at 
the  basis  of  the  Constitution,  129. 
Respecting  formation  of  Congress, 
141,  167, 195  ; representation  in  Con- 
gress, 146.  Respecting  slavery,  161 ; 
how  to  be  effected,  163 ; reflections 
on,  309.  Committee  of,  proposed  by 
Gouverneur  Morris,  201.  Respecting 


Senate,  as  affected  by  money  bills, 
217  ; choice  of  executive,  220.  How 
to  be  studied,  220.  Respecting  slave- 
trade  and  navigation  act,  302.  If 
not  made,  necessary  consequences, 
315. 

Confederation,  office  of,  in  American 
history,  I.  140,  149.  Revenues  of, 
147.  Defects  of,  148,  155;  II.  11, 
14,  15,  35,  60,  79,  376.  Restraints 
imposed  by,  upon  the  States,  I.  149. 
Legal  commencement  of,  149.  Op- 
eration of,  to  the  close  of  the  war, 
181 . Power  of,  to  maintain  an  army 
and  navy  in  peace,  215.  Analyzed 
by  Hamilton,  221.  Principle  of,  ad- 
hered to,  225.  Summary  of  its  oper- 
ations, 228.  Incapacity  of,  to  protect 
the  State  governments,  260.  Had 
no  strict  power  to  hold  or  manage 
public  lands,  291.  Decay  and  fail- 
ure of,  328 ; II.  13.  Fatal  defect  in 
the  principle  of  the,  I.  371.  Nature 
of,  II.  16.  Had  no  power  of  compul- 
sion, 16,  376.  Powers  of,  27.  Prin- 
ciple of,  33.  Rule  of  suffrage  under, 
42.  Had  no  executive  or  judiciary, 
60.  Laws  of,  to  be  executed  by 
State  tribunals,  61.  Compared  with 
Constitution,  90.  Articles  of,  framed 
in  1776,  158.  Assessments  on  States 
under,  1 60.  Still  in  force  while  Con- 
vention in  session,  178.  Relation  of, 
to  States,  179.  States  opposed  to 
entering,  except  on  full  federal  equal- 
ity, 227.  Had  no  seat  of  govern- 
ment, 268.  Want  of  power  in,  over 
commerce,  279  ; over  revenues,  279. 
Engagements  of,  proposal  to  assume, 
321.  Want  of  power  in,  to  admit 
new  States,  349.  Rule  of,  respecting 
making  of  treaties,  376,  416,  441. 
Nature  and  objects  of,  448.  How 
amended,  473.  Chief  cause  of  fail- 
ure of,  573.  See  Articles  of  Confeder- 
ation and  Congress. 

Confiscations,  provided  against,  by  the 
Treaty  of  Peace,  I.  250.  Strict  right 
of,  belonged  to  the  Union,  251. 
Congress  of  the  Revolution,  leaves 
Philadelphia  after  the  battle  of  the 
Brandywine,  I.  113  ; assembles  at 
Lancaster  and  Yorktown,  113.  Of 
the  Confederation,  first  meeting  of, 
125  ; structure  and  form  of,  143,  II. 
133,  226  ; powers  of,  I.  144  ; restric- 
tions on  powers  of,  146  ; attendance 
diminished  after  the  peace,  189  ; driv- 
en from  Philadelphia  by  a mutiny, 


INDEX. 


627 


220  ; decline  of,  226  ; meeting  of,  in 
1783,  235  ; thinly  attended,  235  ; 
appointment  and  attendance  of  dele- 
gates, 237,  239  ; perpetually  in  ses- 
sion, 238 ; public  objects  to  be  ac- 
complished by,  239  ; condition  of,  in 
1785,  339  ; unfitted  to  revise  the  fed- 
eral system,  364  ; had  but  one  cham- 
ber, n.  132  ; resolution  for  continu- 
ance of,  176;  method  of  voting  in, 
226 ; members  of,  chosen  annual- 
ly, and  liable  to  recall,  241  ; ap- 
pointment of  officers  by,  complaints 
respecting,  248  ; met  where,  268 ; 
presence  of,  in  New  York,  benefits 
resulting  from,  273  ; attempts  of,  to 
procure  cessions  from  States,  342  ; 
resolve  of,  for  regulation  of  North- 
west Territory,  342  ; power  of,  to 
admit  new  States,  344  ; transmission 
of  Constitution  to,  486  ; action  of, 
on  Constitution,  499.  Old,  authority 
of,  continued  till  new  adopted,  86. 
Under  Virginia  plan,  to  have  two 
houses,  101.  Under  New  Jersey 
plan,  to  be  one  body,  101.  Present 
constitution  of,  by  whom  first  sug- 
gested, 138  ; compromise  respecting, 
141,  167.  Power  of,  to  legislate  for 
general  interests  of  Union,  170;  to 
negative  State  laws,  170;  respecting 
elections  to,  257 ; in  general,  279;  over 
taxes,  duties,  &c.,  322  ; to  pay  debts 
of  United  States,  322  ; to  provide 
for  common  defence,  &c.,  322 ; over 
places  purchased  for  forts,  &c.,  340  ; 
over  Territories,  different  views  con- 
cerning, 340,  358 ; limited,  340 ; over 
soil  of  national  domain,  351  ; pro- 
posed, over  property  of  United  States, 
355;  restraints  on,  359;  to  establish 
inferior  tribunals,  423, 427.  Acts  of, 
supreme  law,  170  ; how  passed,  264. 
Proposal  that  executive  be  chosen  by, 
171.  Members  of,  qualifications  of, 
194;  ineligibility  of,  to  office,  250; 
time,  &c.  of  electing,  left  to  States, 
258  ; pay  of,  proceedings  in  Conven- 
tion respecting,  258  ; objections  to 
States  paying,  259  ; privileged  from 
arrest,  263  ; punishment  and  expul- 
sion of,  263  ; not  to  be  questioned 
elsewhere  for  speech  or  debate,  263. 
Importance  of  early  legislation  of, 
208-  Proposed  to  be  modelled  after 
Congress  of  Confederation,  226.  Ad- 
mission of  members  of  Cabinet,  &c. 
to,  question  respecting,  253.  Each 
house  of,  to  be  judge  of  elections, 


&c.  of  its  own  members,  262  ; to  de- 
termine its  own  rules  of  proceeding, 
263;  to  keep  journal,  263.  Adjourn- 
ment of,  275,  419.  Exclusive  sover- 
eign of  District  of  Columbia,  277. 
Time  of  meeting  of,  277.  To  make 
all  necessary  and  proper  laws  for  ex- 
ecution of  powers,  338.  To  declare 
war,  413.  To  authorize  calling  out 
of  militia,  413.  Special  relations  of 
President  to,  419.  To  prescribe 
mode  of  proof  and  effect  of  State  rec- 
ords, &c.,  449.  To  propose  amend- 
ments to  Constitution,  477.  To  call 
Convention  to  amend  Constitution, 
when,  477. 

Connecticut,  a charter  government,  I.  5. 
Governor,  council,  and  representa- 
tives always  chosen  by  the  people, 
6.  Had  five  representatives  in  first 
House,  149.  Cedes  claims  to  West- 
ern territory,  300,  344.  Appoints 
and  instructs  delegates  to  the  Con- 
vention, 369.  Opposed  to  Conven- 
tion, II.  23  ; to  executive  holding  of- 
fice during  “good  behavior,”  173; 
to  property  qualification  for  office, 
189;  to  nine  years’  citizenship  as 
qualification  of  Senator,  224  ; to  tax- 
ing exports,  296  ; to  restricting  Pres- 
ident to  stated  salary,  407.  In  favor 
of  equality  of  suffrage  in  both  branch- 
es of  Congress,  122,  138  ; of  equal 
representation  of  States  in  Senate, 
141,  148,  165;  of  census  of  free  in- 
habitants, 153  ; of  referring  Consti- 
tution to  State  legislatures,  184  ; of 
each  State  having  one  vote  in  Sen- 
ate, 227.  Vote  of,  respecting  citizen- 
ship as  qualification  for  office,  209  ; 
respecting  money  bills,  216,  218  ; re- 
specting eligibility  of  members  of 
Congress  to  office,  251  ; respecting 
slave-trade,  305.  Ratification  of  Con- 
stitution by,  515.  Convention  of, 
527  ; debates  in,  mostly  lost,  529. 
Connecticut  Reservation,  note  on,  1. 300. 
Constitution,  how  framed,  II.  3.  Means 
of  peaceful  coercion  a leading  object 
of,  62.  An  abridgment  of  State  pow- 
ers in  some  respects,  73.  Republican 
government  guaranteed  to  States  by, 
80,  458,  468.  Capacity  of,  of  amend- 
ment, 84.  Why  submitted  to  peo- 
ple for  ratification,  84.  As  reported 
to  Convention,  86.  Different  plans 
of,  proposed  in  Convention,  89. 
Compared  with  Confederation,  90. 
Compromise  of,  between  national 


628 


INDEX. 


and  federal  system,  102.  Based  on 
compromises,  129.  Possibility  of  fail- 
ure to  create,  reflections  on,  142.  Fra- 
mers of,  problem  before,  155  ; posi- 
tion and  purposes  of,  178;  had  been 
observers  of  Parliamentary  corrup- 
tion, 242.  State  and  national  officers 
sworn  to  support,  177, 372.  Ratifica- 
tion of,  177.  Dissatisfaction  with,  in 
different  States,  182.  How  differs 
from  league,  184.  Proposal  to  submit, 
to  Congress  of  Confederation,  185. 
Growth  of,  important  to  be  pursued 
through  entire  proceedings,  1 93.  Di- 
vided into  twenty-three  articles  by 
committee’s  report,  194.  Interest  in 
Europe  respecting,  196.  Should  de- 
fine eligibility  to  national  offices,  199. 
Purposes  of,  respecting  immigrants, 
209.  Analogy  of,  to  British  Consti- 
tution, 214.  Provisions  of,  as  origi- 
nally proposed,  230.  Benefits  of,  to 
North  and  South,  303.  Conception 
of,  gradually  attained,  311.  Hopes 
of  framers  of,  exceeded,  311.  Sprung 
from  necessities  of  commerce,  312. 
Objections  to,  of  favoring  slavery,  su- 
perficial, 313.  Proper  mode  of  judg- 
ing, 313.  Rights  guaranteed  to 
States  by,  314.  Beneficent  opera- 
tion of,  on  condition  of  slaves,  315. 
Provision  of,  respecting  power  of  Con- 
gress over  Territories,  355  ; purpose 
of,  355  ; explanation  of,  357.  Adop- 
tion of,  372.  Preamble  to,  372.  Su- 
preme law,  374.  Binding  on  all  ju- 
dicial officers,  374.  Complex  char- 
acter of,  379.  Workings  of,  not 
impaired  by  territorial  growth,  381. 
Success  of,  when  other  systems  had 
failed,  cause  of,  384.  Proposed  by 
Governor  Randolph,  410.  Cases 
arising  under,  meaning  of,  430. 
Confers  few  special  powers  on  gen- 
eral government,  432.  Restrictions 
laid  on  States  by,  432.  Powers  of 
national  and  State  governments  de- 
termined by,  436.  Designed  to  form  a 
more  perfect  union,  448.  Inter-state 
privileges  under,  448.  Amendments 
of,  how  proposed  and  adopted,  473. 
Oath  to  support,  by  whom  to  be  taken, 
478.  Religious  test  never  to  be  re- 
quired under,  478.  Serious  questions 
respecting  mode  of  establishing,  479. 
Effect  of  ratification  of,  by  only  part 
of  States,  484.  Formal  assent  of 
States  to,  in  Convention,  485.  Form 
of  attestation  to,  485.  Refusal  of 


three  delegates  to  sign,  485.  Presen- 
tation of,  to  Congress,  486.  Proba- 
ble consequences  of  rejection  of,  487. 
Issue  presented  by,  to  people  of  Unit- 
ed States,  487.  Attempt  to  intro- 
duce monarchy  averted  by,  494.  Pub- 
lished September  19th,  1787,  495. 
Reception  of,  among  the  people,  495. 
Friends  and  opponents  of,  classified, 
495.  Advocates  of,  why  styled  Fed- 
eralists, 496.  Adopted  by  intelligent 
majority  in  each  State,  499.  Recep- 
tion of,  by  Congress,  499.  Attempt 
in  Congress  to  arrest  or  alter,  499. 
Real  crisis  of,  515.  General  and  spe- 
cial opposition  to,  515.  People  pre- 
disposed to  adopt,  516.  First  rati- 
fied by  Delaware,  518.  Right  of 
people  to  change  at  pleasure,  522. 
Bestows  only  a part  of  power  of  peo- 
ple, 522.  Ratification  of,  rejoicings 
in  honor  of,  540.  Anxiety  respecting 
State  action  on,  544.  Amendments 
of,  proposed  by  South  Carolina,  548. 
Opposition  to,  in  New  York,  572. 
Adoption  of,  an  event  unparalleled 
in  history,  584.  Opponents  of,  con- 
cessions to,  justified,  590. 
Constitutions,  written,  how  far  exist- 
ed before  the  Revolution,  I.  4.  Of 
the  States,  origin  and  character  of, 
261. 

Constitutional  Convention,  first  sugges- 
tion of,  I.  206.  First  suggested  by 
Massachusetts,  336.  Suggestion  of 
Massachusetts  respecting,  not  adopt- 
ed, 337  ; withdrawn,  338  ; objections 
of  her  delegates  in  Congress  to,  339. 
Urged  by  various  public  bodies,  349. 
Considered  and  adopted  by  Congress, 
350.  Early  recommendations  of  350. 
Recommended  by  the  Annapolis 
Commissioners,  350  ; by  Congress, 
361.  Difficulties  of  its  position,  367. 
Powers  of,  not  strictly  defined,  367. 
Opinions  of  leading  statesmen  re- 
specting, 373.  Assembles  at  Phila- 
delphia, 374.  Novelty  and  peculiari- 
ty of  its  task,  374.  List  of  members 
of,  516.  Great  object  of,  II.  5.  Mem- 
bers of,  character  of,  17  ; different 
views  of,  17;  greatness  of,  144.  Au- 
thority and  powers  of,  uncertain,  18. 
All  States  but  Rhode  Island  repre- 
sented in,  23.  Presence  of  all  States 
in,  not  required,  26.  Had  no  power 
to  enact  or  establish,  29.  Character 
of,  29.  Proceedings  of,  how  to  he 
studied,  29 ; secrecy  of,  491  ; singu- 


INDEX. 


629 


lar  rumors  respecting,  492.  Supposed 
want  of  authority  in,  to  propose  fun- 
damental changes,  91.  Report  of 
committee  of  the  whole  made  to,  June 
19th,  129.  Struggle  in,  respecting 
form  of  Constitution,  129.  Disrup- 
tion of,  imminent  at  one  time,  142. 
Possible  consequences  of  failure  of, 
143.  Resolution  recommending,  185. 
Instructions  to  delegates  to,  185. 
Causes  of  success  of,  475.  A second, 
inexpedient,  475,  589.  Dissolved 
September  14th,  1787,  491. 

Constitutional  Law , American , origi- 
nates in  The  Federalist,  I.  417. 
Questions  of,  how  determined,  II. 
375. 

Constitutionality  of  laws,  questions  of, 
how  settled,  II.  433. 

Construction , questions  of,  how  far  con- 
sidered, II.  4. 

Consuls,  to  be  nominated  by  President, 
I.  418.  Cases  affecting,  jurisdiction 
of,  444. 

Continental  Congress,  formation  of  first, 
I.  3.  Advised  by  Franklin  in  1773, 
10.  First  suggestion  of,  1 1 . Recom- 
mended by  Virginia,  1 1 . Appointed 
for  September,  1774,  12.  Declared 
expedient  by  Massachusetts,  12. 
First,  assembled  and  organized,  13  ; 
delegates  to,  how  appointed,  13  ; how 
composed,  14  ; method  of  voting  in, 
15  ; relation  of,  to  the  people  of  the 
several  Colonies,  15 ; purpose  of,  not 
revolutionary,  16  ; instructions  to 
delegates  in,  18;  how  it  sought  re- 
dress, 18, 19  ; revolutionary  tendency 
of,  19 ; assumed  guardianship  of 
rights  and  liberties,  1 9 ; proceedings 
of,  in  stating  rights,  20  ; duration  of, 
24  ; adjournment  of,  25 ; recom- 
mends another  Congress,  25  ; where 
held  from  1774  to  1783,  226;  each 
Colony  had  one  vote  in,  II.  227.  Sec- 
ond, election  of  delegates  to,  by  Mas- 
sachusetts Provincial  Congress,  1. 27 ; 
assembles  at  Philadelphia,  28 ; dele- 
gates to,  how  appointed,  29  ; instruc- 
tions to  delegates  to,  29  ; rule  of  vot- 
ing in,  29  ; powers  assumed  by,  31. 
Becomes  a permanent  body,  30.  Pe- 
tition of,  to  the  King,  38.  Dissolves 
the  allegiance  of  the  Colonies  to  the 
King,  38.  Becomes  a revolutionary 
government,  39.  Nature  of  the  gov- 
ernment by,  54.  Situation  of,  at  the 
end  of  1776,  100.  Change  in  the 
members  of,  in  1777,  104.  Creden- 


tials of  members  of,  in  1776,  105. 
Constitution  of,  II.  42. 

Continental  Currency  first  issued,  I. 
34. 

Contracts,  restraint  on  legislative  vio- 
lation of,  origin  of,  II.  361,  365  ; ob- 
ligation of,  impaired  by  State  law’,  re- 
dress in  case  of,  433.  See  Obligation 
of  Contracts. 

Contribution,  rule  of,  attempted  to  be 
changed,  I.  210. 

Convention,  at  Williamsburg,  I.  12. 
At  Hartford,  in  1779,  205. 

Convention  of  all  the  States.  See  Con- 
stitutional Convention. 

Copyrights,  State  legislation  concern- 
ing, II.  339.  Power  over,  surren- 
dered to  Congress,  339. 
Cornwallis,  enters  Newark,  I.  98. 
Effect  of  capture  of,  157. 

Council,  vacancies  in,  how  filled  in 
provincial  governments,  I.  4.  Sus- 
pension of,  from  office  in  provincial 
governments,  4.  Part  of  the  provin- 
cial governments,  4 ; charter  govern- 
ments, 5.  How  chosen,  5. 

Council  of  Revision,  proposed,  dangers 
of,  II.  435 ; much  favored  in  Con- 
vention, 438  ; purpose  of,  438. 
Counterfeiting,  power  of  Congress  to 
define  and  punish,  II.  332. 

Courts,  inferior,  Congress  may  estab- 
lish, II.  330,  423. 

Courts  of  United  States,  jurisdiction  of, 
over  persons  of  certain  character,  II. 
441.  Admiralty  and  maritime  juris- 
diction of,  445. 

Creditors,  rights  of,  secured  by  the 
Treaty  of  Peace,  I.  250. 

Crimes,  trial  for.,  to  be  in  State  where 
committed,  II.  424 ; to  be  by  jury,- 
424. 

Crown,  the  source  of  political  power 
in  the  Colonies,  I.  3.  Powers  of,  in 
provincial  governments,  4. 

Currency  under  Revolutionary  govern- 
ment, I.  78. 

Cushing,  Thomas,  suggests  Conti- 
nental Congress,  I.  11.  Delegate  to 
first  Continental  Congress,  13. 


D. 

Dane,  Nathan,  author  of  Ordinance 
of  1787,  II.  365. 

Debts  due  to  English  merchants  at 
the  peace,  I.  250.  Action  of  Con- 


630 


INDEX. 


gress  respecting,  258.  Of  States, 
proposition  to  assume,  II.  319.  Of 
United  States,  provision  for  payment 
of,  320 ; power  of  Congress  to  pay, 
322. 

Debt  of  the  United  States,  in  1783,  I. 
172.  Foreign  and  domestic,  where 
held,  178.  National  character  of,  182. 
Necessity  of  revenue  power  to  dis- 
charge, 183.  Amount  of,  at  the  close 
of  the  war,  184. 

Declaration  of  Independence,  authorship 
of,  I.  81.  Effect  of,  upon  the  coun- 
try, 89 ; upon  Congress,  90.  See  In- 
dependence. 

Declaration  of  Rights,  by  first  Conti- 
nental Congress,  I.  22. 

Delaware,  a proprietary  government,  I. 
5.  Constitution  of,  formed, 122.  Re- 
sists the  claim  of  great  States  to 
Western  lands,  131.  Ratifies  the 
Confederation,  135.  Action  of,  com- 
mended, 138.  Resolves  of,  respect- 
ing the  Articles  of  Confederation, 
498.  Opposed  to  change  in  rule  of 
suffrage,  II.  36  ; to  division  of  legis- 
lature, 133  ; to  census  of  free  inhabit- 
ants, 153 ; to  striking  out  wealth  from 
rule  of  representation,  164  ; to  refer- 
ring Constitution  to  people,  185  ; to 
property  qualification  for  office,  189  ; 
to  restricting  President  to  stated  sal- 
ary, 407.  Vote  of,  respecting  citi- 
zenship as  qualification  for  office,  209  ; 
respecting  money  bills,  216,  218;  re- 
specting slave-trade,  305  ; respecting 
admission  of  States,  354.  In  favor 
of  equality  of  suffrage  in  House  of 
Representatives,  138;  of  equality  of 
States  in  Senate,  165  ; of  executive 
holding  office  during  “good  behav- 
ior,” 173  ; of  referring  Constitution 
to  State  legislatures,  184;  of  each 
State  having  one  vote  in  Senate,  227  ; 
of  taxing  exports,  296.  Had  one 
representative  in  first  House,  149. 
Ratification  of  Constitution  by,  515, 
518.  Patriotism  of,  518.  Enlightened 
by  discussions  on  Constitution  in 
Pennsylvania  convention,  518. 

Delaware  River,  Washington  crosses 
the,  I.  99. 

Delegate,  Territorial,  position  of,  in 
Congress,  II.  256. 

Democracy,  did  not  originate  in  Ameri- 
ca, II.  7.  Principle  of,  how  modified 
in  America,  7. 

Departments  of  Government,  division  of, 

I.  118. 


Dickinson,  John,  in  favor  of  tax  on 
exports,  II.  284. 

Dictatorship.  See  Washington. 

District  of  Columbia,  under  exclusive 
government  of  Congress,  H.  277. 

Dock-Yards,  authority  of  Congress 
over,  H.  340. 

Dorset,  Duke  of,  reply  of,  to  the 
American  Commissioners,  I.  289. 

Duane,  James,  efforts  of,  to  procure 
adoption  of  Constitution  by  New 
York,  II.  585. 

Duties,  power  to  levy,  asked  for  by 
Congress  iu  1781,  I.'  173  ; not  given, 
174.  Power  of  Congress  to  impose, 
II.  322.  To  be  uniform  throughout 
United  States,  325.  What  may  be 
laid  by  States,  368.  Laid  by  States, 
net  produce  of,  how  applied,  368 ; 
subject  to  revision  of  Congress,  368. 
Payment  of,  how  compelled,  433. 


E. 

Eastern.  States,  course  of,  respecting 
the  navigation  of  the  Mississippi,  I. 
315. 

Elections,  frequency  of,  favored,  II.  241. 

Elective  Franchise,  could  not  be  con- 
fined to  native  citizens,  II.  1 98. 

Electors,  of  President,  advantages  of, 
II.  175  ; proposed  in  committee,  220  ; 
number  of,  235, 389  ; embarrassments 
respecting  choice  of,  388  ; mode  of 
election  by,  390  ; case  of  no  choice 
by,  390 ; required  to  return  votes  for 
two  persons,  393  ; how  chosen,  398  ; 
method  of  proceeding,  399  ; new  ap- 
pointment of,  when,  403.  Property 
as  a qualification  of,  187.  Of  repre- 
sentatives in  Congress,  qualification 
of,  194,  200. 

Ellsworth,  Oliver,  compromise 
respecting  Congress  proposed  by,  II. 
141.  Opposed  to  tax  on  exports, 
294.  Influence  and  arguments  of, 
in  Connecticut  convention,  528. 

Emigration,  from  Europe,  a subject  of 
solicitude,  II.  195. 

England,  government  of,  not  a model 
for  the  Constitution,  I.  391. 

English  Language  spoken  by  the  colo- 
nists, I.  3,  9. 

English  Laws  inherited  by  the  colo- 
nists, I.  9. 

Enlistments.  See  Army  and  Bounties. 

Equity  and  common  law,  distinction 
between,  preserved  by  Constitution, 


INDEX. 


631 


II.  425.  Jurisdiction  under  Consti- 
tion  important,  425. 

Europe , politics  of,  as  affecting  Amer- 
ica, II.  80. 

Excises , power  of  Congress  to  collect, 
II.  322.  To  be  uniform  throughout 
United  States,  325. 

Executive , methods  proposed  for 
choice  of,  II.  59,171.  Duration  of 
office  of,  under  Hamilton’s  plan,  100. 
Duration  of  office  of,  171 ; proposed 
to  be  during  “good  behavior,”  173. 
Ee-eligibility  of,  different  views  re- 
specting, 172, 175.  Choiceof,  directly 
by  people,  difficulties  attending,  174. 
Whether  should  be  subject  to  im- 
peachment, 175.  Choice  of,  conflict 
of  opinions  respecting,  220  ; proposed 
to  be  by  Congress  for  seven  years, 
220  ; by  electors,  220  ; by  Senate,  in 
certain  events,  221 ; by  House  of  Rep- 
resentatives, 222  ; by  concurrent  vote 
of  Senate  and  House  of  Representa- 
tives, 223,  2;f0  ; proposed  negative 
of  Senate  in,  232.  Jealousy  of, 
232.  See  President  and  Vice-Presi- 
dent. 

Executive  Department,  proposed  consti- 
tution and  powers  of,  II.  56,  170. 
Relation  of,  to  legislature,  57,  247. 
Unknown  to  Confederation,  60.  Pow- 
ers of,  defined  by  constitutions  in 
America,  72.  Influence  to  be  al- 
lowed to,  over  legislative,  244.  Ac- 
tion of,  requires  discretion,  246. 

“ Executive  Power”  vested  in  Presi- 
dent, meaning  of,  412. 

Exports,  taxation  of,  Pinckney’s  prop- 
osition concerning,  II.  189  ; refusal 
of  South  Carolina  to  submit  to,  281, 
285  ; an  undoubted  function  of  gov- 
ernment, 282  ; consequences  of  denial 
of,  282 ; when  only  beneficial,  282 ; 
question  of,  as  affected  by  variety, 
283 ; members  of  Convention  in  fa- 
vor of,  284 ; report  of  committee  of 
detail  respecting,  290  ; great  embar- 
rassments respecting,  294  ; arguments 
for  and  against,  294,  297  ; opposition 
to,  not  confined  to  South,  294 ; by 
States,  an  oppressive  power,  295  ; 
finally  prohibited,  295  ; for  what  rea- 
sons opposed  in  Convention,  297 ; 
by  States,  arguments  for  and  against, 
368. 

Ex  Post  Facto  Laws,  definition  of,  II. 
360,  367.  Passage  of,  prohibited  to 
Congress,  360 ; to  States,  368. 


F. 

Faith  and  Credit,  to  be  given  to  certain 
acts,  &c.,  I.  143. 

Falmouth  (now  Portland),  burnt,  I.  38, 
74. 

Faneuil  Hall,  meeting  at,  respecting  a 
national  regulation  of  commerce,  I. 
336. 

Federal  Census,  origin  of  its  rule  of 
three  fifths,  I.  213. 

Federal  Government,  how  distinguished 
from  “national,”  II.  33.  By  what 
States  preferred,  117.  Arguments  in 
favor  of,  124  ; theoretically  sound, 
126.  Had  proved  a failure,  127. 

Federal  Town.  See  Congress  and  Seat 
of  Government. 

Federalist,  original  meaning  of,  II.  496. 
Changes  in  meaning  of  term,  497. 
Miniature  ship  so  called,  543. 

Federalists  of  Massachusetts,  enthusi- 
asm kindled  by,  II.  541.  Of  New 
Hampshire,  action  of,  541.  Of  New 
York,  justified  by  Washington,  590; 
complaints  against,  591. 

Federalist,  The,  published,  I.  409. 
Character  and  influence  of,  417.  His- 
tory of  the  editions  of,  418.  Remark 
of,  respecting  Confederation,  II.  61. 
Purpose  of  publication  of,  503. 
When  first  issued,  503.  Authors 
of,  503. 

Felony,  various  meanings  of,  II.  331. 
Power  of  Congress  to  define  and  pun- 
ish, 331. 

Finances,  must  rest  on  some  source  of 
compulsory  revenue,  I.  183.  See 
Debts,  Revenue,  and  Duties. 

Fisheries,  great  value  of,  H.  310. 

Foreigners,  cases  affecting,  jurisdiction 
in,  II.  443.  Cannot  demand  sanc- 
tuary as  matter  of  right,  457. 

Foreign  Influence,  jealousy  of,  II.  196, 
204,  223.  Necessity  of  counteract- 
ing, 211. 

Forts,  authority  of  Congress  over,  II. 
340. 

Framei's  of  the  Constitution,  difficulties 
and  perplexities  of  their  task,  I.  380. 
Then-  qualifications,  &c.,  386.  Their 
success,  393. 

France,  debts  of  the  United  States  to, 
I.  172.  Contracts  with  the  king  of, 
177.  Relations  of  the  United  States 
to,  178. 

Franklin,  Benjamin,  his  plan  of 
union  in  1754,  I.  8.  Advises  a Con- 


632 


INDEX. 


gress  in  1773,  10.  Appointed  Post- 
master-General by  Continental  Con- 
gress, 35.  One  of  the  committee  to 
prepare  Declaration  of  Independence, 
50.  One  of  the  commissioners  to 
procure  commercial  treaties,  287. 
Returns  from  Europe,  433.  Public 
services  of,  433.  Character  of,  435. 
Influence  in  the  Convention,  436. 
Speech  of,  at  the  close  of  the  Con- 
vention, 437.  Witnesses  the  success 
of  Washington’s  administration,  439. 
Proposition  of,  respecting  represen- 
tation in  Congress,  II.  146.  Views 
of,  respecting  money  bills,  218.  Op- 
posed to  paying  President,  405.  In 
favor  of  plural  executive,  405.  Views 
of,  respecting  executive,  quite  unlike 
Hamilton’s,  405 ; respecting  conse- 
quences of  rejection  of  Constitution, 
487.  Unbounded  confidence  of  peo- 
ple in,  498. 

Free  Inhabitants,  privileges  of,  I.  143. 

French  Loans.  See  France. 

French  Revolution , early  writers  of  the, 
I.  378.  Begun  when  Constitution 
went  into  operation,  II.  80.  Interest 
felt  in,  in  America,  80. 

French  Troops,  arrive  at  Newport,  I. 
156.  Join  the  army  at  New  York, 
156. 

Fugitives,  from  justice,  provision  for 
surrender  of,  under  the  Confedera- 
tion, I.  143,  II.  449.  From  sendee, 
clause  in  Constitution  respecting, 
history  of,  450.  See  Slaves. 


G. 

General  Convention.  See  Constitutional 
Convention. 

Georgia,  a provincial  government,  I.  4. 
Constitution  of,  formed,  122.  Ap- 
points and  instructs  delegates  to  the 
Convention,  369.  Had  but  one  cham- 
ber in  legislature,  II.  132.  Opposed 
to  equality  of  suffrage  in  House  of 
Representatives,  138.  Divided  on 
question  of  equal  vote  of  States  in 
Senate,  141,  148.  Had  three  repre- 
sentatives in  first  House,  149.  Op- 
posed to  census  of  free  inhabitants, 
153;  to  equality  of  States  in  Senate, 
165  ; to  executive  holding  office  dur- 
ing “ good  behavior,”  173.  In  favor 
of  property  qualification  for  national 
officers,  204.  Vote  of,  respecting  citi- 


zenship as  qualification  for  office  209  ; 
respecting  money  bills,  2 1 6,  2 1 8.  Di- 
vided on  question  of  each  State  hav- 
ing one  vote  in  Senate,  227.  Op- 
posed to  taxing  exports,  296.  Po- 
sition of,  in  Convention,  respecting 
slave-trade,  297,  301.  Vote  of,  re- 
specting slave-trade,  305.  Cession 
by,  in  1802,  357.  Vote  of,  on  sus- 
pension of  habeas  corpus,  360  ; re- 
specting citizenship  clause  in  Consti- 
tution, 453.  Ratification  of  Consti- 
tution by,  515,  526.  Remoteness  of, 

526.  Situation  of,  at  close  of  Revo- 
lution, 526.  Motives  of,  to  embrace 
Constitution,  526.  Address  by  legis- 
lature of,  to  President  Washington, 

527.  Exposure  of,  to  ravages  of  In- 
dians, 527.  Escape  of  . slaves  from, 
to  Florida,  527. 

Gerrt,  Elbridge,  opposed  to  nu- 
merical representation  in  Congress, 
11.49;  to  tax  on  exports,  294.  Re- 
fused to  sign  Constitution,  why,  485. 
Censured  for  refusing  to  sign  Con- 
stitution, 501. 

Gillon,  Commodore,  arguments  of, 
in  convention  of  South  Carolina,  II. 
548. 

Gorham,  Nathaniel,  views  of,  re- 
specting rule  of  suffrage  for  House 
of  Representatives,  II.  135.  A mem- 
ber of  committee  to  apportion  repre- 
sentatives, 148. 

Government,  disobedience  to,  how  pun- 
ished, II.  61.  Essentials  to  suprema- 
cy of,  62.  Different  departments  in, 
advantages  of,  245.  Approximation 
to  perfect  theory  of,  only  attainable, 
247.  Distribution  of  powers  of,  when 
easy,  421  ; when  difficult,  421. 

Governor , part  of  the  provincial  gov- 
ernments, I.  4. 

Grayson,  William,  opposed  to  Con- 
stitution, II.  506. 

Great  Britain,  re-union  with,  desired 
by  some,  II.  493 ; letter  of  Colonel 
Humphreys  respecting,  493  ; Hamil- 
ton’s views  respecting,  494. 

Green  Dragon  Tavern,  meeting  at,  re- 
specting a national  regulation  of 
commerce,  I.  336. 

Grievances.  See  Colonies  and  Revolu- 
tion. 

Guardoqui,  Spanish  minister,  arrival 
of,  I.  313.  Negotiations  with,  re- 
specting the  Mississippi,  313. 


INDEX. 


633 


H. 

Habeas  Corpus,  privilege  of,  when  sus- 
pended, II.  359  ; under  common  law 
of  England,  359. 

Half-pay,  resisted  by  Connecticut  and 
Massachusetts,  I.  190.  History  of, 
194.  Commutation  of,  194.  See 
Officers  of  the  Revolution. 

Hallam,  Henry,  Constitutional  His- 
tory of  England  by,  great  value  of, 
II.  244. 

Hamilton,  Alexander,  laments  the 
changes  in  Congress  in  1778,  I.  127. 
Exertions  of,  respecting  revenue  sys- 
tem, 176.  Reasons  of,  for  voting 
against  revenue  system,  177.  An- 
swers the  objections  of  Rhode  Island, 
177,  206,  207.  On  the  commercial 
advantages  of  a revenue  power,  184. 
On  the  discontents  of  the  army,  and 
the  public  credit,  197.  Opinions  of, 
concerning  the  reorganization,  &c.,  in 
1780,  202.  Maintains  that  Congress 
should  have  greatly  enlarged  powers, 
204.  Suggests  a convention  of  all 
the  States  in  1780,  205.  Enters  Con- 
gress, 206.  On  a revenue,  and  the 
mode  of  collecting  it,  207.  On  the 
compatibility  of  federal  and  State 
powers,  207.  On  the  appointment 
of  revenue  officers,  208.  Extent  of 
views  of,  209.  On  the  rule  of  con- 

' tribution,  210.  On  the  necessity  for 
power  of  taxation,  211.  Seeks  to 
introduce  new  principles,  211.  On 
a peace  establishment,  214.  Opin- 
ions on  the  powers  that  should  be 
given  to  Congress,  219.  Exertions 
of,  to  suppress  the  mutiny  at  Phila- 
delphia, 220.  Views  of,  respecting 
defects  of  the  Confederation,  221. 
Opinions  of,  too  far  in  advance  of 
the  time,  224.  Answers  New  York 
objections  to  revenue  system,  247. 
Opinions  of,  concerning  the  Con- 
federation, 263.  Views  of,  respect- 
ing the  regulation  of  commerce,  277  ; 
the  statesmanship  of  America,  278. 
Induces  New  York  to  send  delegates 
to  Annapolis,  345.  Reports  at  An- 
napolis in  favor  of  a general  Con- 
vention to  revise  the  federal  system, 
347.  Relation  of,  to  the  plan  of  a 
general  Convention,  and  a national 
Constitution,  350.  Contemplates  a 
new  government,  350.  Induces  the 
legislature  of  New  York  to  urge  a 
general  Convention,  359.  Views  of, 
80 


on  the  mode  of  proceeding,  364. 
Confidence  of,  in  the  experiment  of 
a Convention,  373.  History  and 
character  of,  406.  Birth  of,  408. 
Various  public  services  of,  409,  II. 
593.  Talleyrand’s  opinion  of,  1. 410. 
Death  of,  410.  Views  of,  respecting 
the  English  Constitution,  411.  Re- 
lation of,  to  the  Constitution,  412. 
Compared  with  the  younger  Pitt, 
413,  416.  Eminent  fitness  of,  for  the 
times,  414.  Advocates  the  Constitu- 
tion in  the  Federalist,  417.  Com- 
pared with  Webster,  418.  Anxiety 
of,  about  the  Constitution,  419.  Un- 
justly charged  with  monarchical  ten- 
dencies, II.  11,  94,  110.  Views  of, 
respecting  Constitution,  94.  Princi- 
ples of  civil  obedience,  as  propound- 
ed by,  96.  Views  of,  respecting  rule 
of  suffrage  for  House  of  Representa- 
tives, 135  ; dissolution  of  Union,  136  ; 
choice  of  President,  174,  240,392; 
nafuralization,  205  ; larger  House 
of  Representatives,  213.  Measures 
of,  respecting  summoning  of  Consti- 
tutional Convention,  273.  Views  of, 
respecting  executive,  quite  unlike 
Franklin’s,  405  ; President’s  power 
to  adjourn  Congress,  420.  Explana- 
tion of,  respecting  appellate  power 
of  Supreme  Court,  428.  Views  of, 
respecting  amendment  of  Constitu- 
tion, 477.  Objections  of,  to  Consti- 
tution, 487.  Views  of,  respecting 
consequences  of  rejection  of  Consti- 
tution, 487,  570 ; possible  reunion 
with  Great  Britain,  494.  Essays  of, 
in  Federalist,  503.  Believed  people 
predisposed  in  favor  of  Constitution, 
516.  Arrangements  of,  for  transmis- 
sion of  news  of  action  of  States  on 
Constitution,  551.  Leading  spirit  in 
convention  of  New  York,  568.  Anx- 
iety of,  respecting  action  of  States 
on  Constitution,  569.  Had  great 
cause  for  solicitude,  569.  Prospects 
of  usefulness  of,  569.  Foresight  of, 
respecting  operation  of  Constitution, 
570.  Had  profound  understanding  of 
Constitution,  570.  Ambition  of,  570. 
Importance  of  public  character  and 
conduct  of,  570.  Contest  of,  with 
opponents  of  Constitution  in  New 
York,  571.  Critical  position  of,  as 
citizen  of  New  York,  571.  Reply  of, 
to  opponents  of  Constitution  in  New 
York,  572.  News  received  by,  of 
ratification  of  Constitution  by  New 


VOL.  II. 


634 


INDEX. 


Hampshire,  573.  Letter  of,  to  Madi- 
son, respecting  chances  of  ratification 
by  New  York,  575.  Would  have 
been  led  by  personal  ambition  to 
remove  from  New  York,  575.  Policy 
of,  national,  577.  Reason  of,  for  em- 
bracing Constitution,  577.  Efforts 
of,  to  procure  adoption  of  Constitu- 
tion by  New  York,  577,  584.  Sends 
news  of  ratification  by  New  Hamp- 
shire to  Madison,  578.  Great  speech 
of,  in  New  York  convention,  in  favor 
of  Constitution,  586.  Writes  to  Madi- 
son, asking  advice  respecting  New 
York,  587.  Honors  paid  to,  by  city 
of  New  York,  592. 

Hancock,  John,  retires  from  Con- 
gress, I.  125.  Returns  to  Congress, 
126.  President  of  Massachusetts 
convention,  II.  537.  Proposes  a- 
mendments  to  Constitution,  537. 
Great  influence  of,  537. 

Harrison,  Benjamin,  opposed  to 
Constitution,  II.  506. 

Hartford  Convention,  met  in  1779,  I. 
205. 

Heights  of  Haerlem,  occupied  by  Wash- 
ington, I.  92. 

Henry,  Patrick,  Governor  of  Vir- 
ginia, I.  126.  Declined  to  attend 
Convention,  II.  173.  Opposed  to 
Constitution,  505.  Characteristics 
of,  505,  561.  In  favor  of  submitting 
Constitution  to  people  of  Virginia, 
510.  Leader  of  opponents  of  Con- 
stitution in  Virginia,  552.  Jeffer- 
son’s estimate  of,  552.  Great  popu- 
larity of,  552.  Wisdom  of,  lacked 
comprehensiveness,  553.  Great  pow- 
ers of,  employed  against  Constitu- 
tion, 553.  Views  of,  respecting 
American  spirit  of  liberty,  553.  Con- 
sidered Bill  of  Rights  essential,  554. 
Arguments  of,  against  Constitution, 
555,  557.  Modern  scepticism  con- 
cerning abilities  of,  561.  Quotes  Jef- 
ferson’s views  of  Constitution,  561. 
Opposed  to  Constitution  to  the  last, 
in  Virginia  Convention,  579.  Project 
of,  for  amending  Constitution,  580. 
Patriotic  conduct  of,  on  adoption  of 
Constitution  by  Virginia,  581.  Be- 
came earnest  defender  of  Constitu- 
tion, 582. 

House  of  Burgesses,  of  Virginia,  dis- 
solved, I.  11. 

House  of  Commons,  ministerial  majori- 
ty of,  during  Revolution,  II.  237. 

House  of  Representatives , Constitution 


of,  discussion  respecting, II.  36.  Mem- 
bers of,  chosen  for  two  years,  134  • 
qualifications  of,  134.  Rule  of  suf- 
frage for,  great  debate  on,  135.  Ex- 
clusive power  of,  over  money  bills, 
146,  214.  Power  of,  to  fix  salaries 
of  government  officers,  146.  Ratio 
of  representation  in7  147,  212.  Eirst, 
apportionment  of  members  for,  148* 
151.  Basis  of,  agreed  to,  165.  Mem- 
bers of,  must  be  twenty-five  years  old, 
203  ; have  been  citizens  three  years, 
203 ; be  inhabitants  of  States  from 
which  chosen,  212.  Larger,  favored 
by  Wilson,  Madison,  and  Hamilton, 
213.  Ultimate  choice  of  executive 
by,  222.  To  present  impeachments, 
262.  Quorum  of,  262.  To  choose 
its  own  presiding  officer,  263.  To 
vote  for  President  by  States,  394. 
Choice  of  President  by,  quorum  for, 
394 ; majority  of  States  requisite  to, 
394. 

Howe,  Sir  William,  proclamation 
by,  respecting  oath  of  allegiance,  I. 
106.  Takes  possession  of  Philadel- 
phia, 113.  Estimate  of,  concerning 
the  American  force  at  the  Brandy- 
wine, 113. 

Humphrey's,  Colonel,  one  of  Wash- 
ington’s aids,  II.  493.  Letter  of,  re- 
specting hopes  of  loyalists,  493. 

Huntington,  Governor,  influence  of, 
in  convention  of  Connecticut,  H. 
529. 

I. 

Impeachment , executive  proposed  to  be 
removable  on,  II.  171.  Whether 
executive  should  be  subject  to,  176. 
How  to  be  decided,  232.  To  be  pre- 
sented by  House  of  Representatives, 
262.  Of  President,  causes  of,  397. 
King’s  pardon  cannot  be  pleaded  in 
bar  of,  414.  President  cannot  par- 
don, 414.  King  may  pardon,  414. 

Impeachments,  proposed  plan  respect- 
ing, II.  235.  Nature  of,  and  consti- 
tutional provisions  respecting,  260. 
To  be  tried  by  Senate,  261. 

Imposts,  power  of  Congress  to  collect, 
II.  322.  To  be  uniform  throughout 
United  States,  325.  What  may  be 
laid  by  States,  368.  Laid  by  States, 
net  produce  of,  how  applied,  368  ; 
subject  to  the  revision  of  Congress, 
368.  Revenue  from,  easiest  mode  of 
paying  expenses  of  government,  528. 


INDEX. 


635 


Indian  Affairs,  superintendence  of, 
assumed  by  Continental  Congress, 

I.  35. 

Indians,  position  of,  II.  325.  Com- 
merce with,  325  ; regulated  by  feder- 
al authority,  326  ; provision  of  Con- 
federation respecting,  326.  Not  re- 
garded as  foreign  nations,  326. 
Independence,  resolution  of,  adopted  in 
Congress,  I.  49.  Declaration  of,  or- 
dered to  be  prepared,  50 ; brought  in, 
51 ; adopted,  51 ; effect  of,  51. 
Inspection  Laws , subject  to  what  abuse, 

II.  368. 

Insurrection.  See  Massachusetts  and 
Shays’s  Rebellion. 


J. 

Jat,  John,  report  of,  on  the  infrac- 
tions of  the  Treaty  of  Peace,  I.  254, 
257.  Projected  mission  of,  to  Spain, 
313.  Proceedings  of,  as  Secretary 
for  Foreign  Affairs,  respecting  the 
Mississippi,  313.  Essays  of,  in  Fed- 
eralist, II.  503.  Efforts  of,  to  pro- 
cure adoption  of  Constitution  by 
New  York,  585. 

Jefferson,  Thomas,  one  of  the  com- 
mittee to  prepare  Declaration  of  In- 
dependence, I.  50.  Account  by,  con- 
cerning the  Congress  of  1776,  64. 
Account  by,  of  Declaration  of  Inde- 
pendence, 82.  In  the  legislature  of 
Virginia,  126.  One  of  the  commis- 
sioners to  procure  commercial  trea- 
ties, 287.  On  the  surrender  of  the 
Mississippi,  321.  Suggests  the  deci- 
mal coinage,  443.  Views  of,  respect- 
ing admission  of  States,  II.  76.  Re- 
solve of,  for  organization  of  States 
from  Northwestern  Territory,  343. 
Practice  of,  respecting  cabinet,  409. 
Views  of,  respecting  government, 
506 ; modifications  of  Constitution, 
506.  At  Paris  when  Constitution 
was  adopted,  506.  Did  not  counsel 
rejection  of  Constitution,  508.  Per- 
severed in  certain  objections  to  Con- 
stitution, 509.  Letters  of,  respecting 
Constitution,  562,  564. 

Johnson,  Dr.,  of  Connecticut,  views 
of,  respecting  Constitution,  II.  128. 
First  suggested  present  constitution 
of  Congress,  138. 

Journal,  to  be  kept  by  each  house  of 
Congress,  II.  263. 


Judges,  tenure  of  office  of,  II.  67 ; in 
England,  67.  Removal  of,  68.  Pow- 
er of  removal  of,  in  England,  69  ; in 
Massachusetts,  70.  “ Good  behavior  ” 
of,  70. 

Judicial  Power  of  United  States,  to  set- 
tle disputes  between  State  and  nation, 
II.  54.  Unknown  to  Confederation, 
60.  Necessity  and  office  of,  61.  In- 
tent evinced  by  introduction  of,  63. 
Made  supreme,  64.  Coextensive  with 
legislative,  65.  Control  of,  over  State 
legislation,  66.  Formation  of,  421. 
Great  embarrassments  respecting, 
422.  Admirable  structure  of,  422.  Ju- 
risdiction of,  cases  embraced  by,  423. 
Great  importance  of  clearly  defining, 
425.  Embraces  cases  under  Constitu- 
tion, laws,  and  treaties,  429.  Changes 
and  improvements  in  original  plan 
of,  431.  Constitutional  functions  of, 
431.  Leading  purposes  of,  431.  May 
declare  laws  unconstitutional,  434. 
Simplicity,  &c.  given  by,  to  opera- 
tion of  government,  437. 

Judiciary,  functions  of,  II.  63,  432. 
Question  concerning  number  of  tri- 
bunals in,  65.  Proposed  powers  of, 
66.  Restriction  respecting  salary  of, 
176.  Jurisdiction  of,  respecting  im- 
peachment of  national  officers,  176; 
over  cases  arising  under  national 
laws,  176;  over  questions  involving 
national  peace,  176.  Action  of,  not 
to  be  influenced  by  other  depart- 
ments, 246. 

Judiciary  of  Massachusetts,  attempt  to 
alter  the  charter  in  respect  to,  I.  6. 


K. 

Kentucky , inhabitants  of,  resist  the  sur- 
render of  the  Mississippi,  I.  322. 

King,  Rufus,  birth  and  education 
of,  I.  448.  Public  services  of,  448. 
Proposes  the  clause  respecting  the 
obligation  of  contracts,  452  ; II.  365. 
Senator  in  Congress,  I.  453.  Min- 
ister to  England,  453.  A member 
of  committee  to  apportion  represent- 
atives, II.  148.  Views  of,  respecting 
Senate,  225  ; seat  of  government,  275. 
Remarks  of,  respecting  slave-trade, 
281.  Views  of,  respecting  represen- 
tation of  slaves,  292.  Effort  of,  to 
exclude  slavery  from  Northwestern 
Territory,  343. 


636 


INDEX. 


L. 

Land  as  the  basis  of  a rule  for  contri- 
bution, I.  210.  Adopted  as  measure 
of  wealth  by  Congress  of  1776,  II. 
160.  Of  United  States  unappropri- 
ated, Madison’s  motion  respecting, 
351. 

Lands,  right  of  aliens  to  hold,  pro- 
posed in  certain  treaties,  1. 280.  See 
Western  Lands  and  Territory. 

Law  of  Nations,  offences  against,  II. 
330;  power  of  Congress  to  define 
and  punish,  331.  Respecting  extra- 
dition of  fugitives,  456. 

Laws  of  United  States,  how  enacted, 
II.  264;  supreme,  372,  374;  to  be 
in  pursuance  of  Constitution,  374 ; 
cases  arising  under,  jurisdiction  over, 
430.  Of  States,  constitutionality  of, 
374.  Constitutionality  of,  how  de- 
termined, 434. 

Law,  Richard.  influence  of,  in  con- 
vention of  Connecticut,  II.  529. 

Lee,  Charles,  General,  expedition 
of,  against  the  Tories  of  New  York, 
I.  66. 

Lee,  Richard  Henry,  moves  the 
resolution  of  independency,  I.  49. 
Account  of,  49.  On  the  navigation 
of  the  Mississippi,  315.  Proposition 
of,  in  Congress,  to  amend  Constitu- 
tion, II.  500.  Opposed  to  Constitu- 
tion, 506. 

Legislative  Department,  division  of,  into 
two  chambers,  I.  119.  Omnipotent 
in  England,  72.  Powers  of,  limited 
in  America  by  constitutions,  72. 
Hamilton’s  views  respecting,  II.  100, 
103,  105.  Great  struggle  respecting, 
in  Constitutional  Convention,  130. 
Objections  to  one  chamber  in,  130. 
How  far  may  safely  be  influenced  by 
executive,  244.  Action  of,  requires 
discretion,  246.  Close  relation  of, 
to  executive,  247. 

Letters  of  Marque  and  Reprisal  issued 
by  Massachusetts  in  1775,  I.  75. 
Power  of  Congress  to  grant,  II. 
332. 

Lexington,  battle  of,  I.  27. 

Livingston,  Robert  R.,  one  of  the 
committee  to  prepare  Declaration  of 
Independence,  I.  50.  Remarks  of,  in 
convention  of  New  York,  II.  574. 
Efforts  of,  to  procure  adoption  of 
Constitution  by  New  York,  585. 

Long  Island,  battle  of,  I.  91. 

Lowndes,  Rawlins,  opposed  to 


Constitution,  II.  510.  Arguments 
of,  against  Constitution,  511. 

Loyalists,  scheme  of,  respecting  Bishop 
of  Osnaburg,  II.  492.  Numbers  of, 
small,  493.  Alarm  occasioned  by 
supposed  scheme  of,  493.  See  Tories. 


M. 

Madison,  James,  enters  the  Revolu- 
tionary Congress,  I.  126.  Exertions 
of,  respecting  revenue  system,  176. 
Writes  the  address  in  favor  of  rev- 
enue system,  177.  Answers  Mas- 
sachusetts on  the  half-pay,  193. 
Birth  of,  420.  Public  services  of, 
to  the  close  of  the  war,  420.  Ini- 
tiates the  Virginia  measures  leading 
to  a general  Convention,  423.  At- 
tends the  convention  at  Annapolis, 
427.  Attends  the  general  Conven- 
tion, 427.  Labors  of,  in  the  Conven- 
tion, 427.  Opinions  and  character 
of,  428.  Described  by  Jefferson,  430. 
Letter  of,  to  Philip  Mazzei,  431 . Ac- 
tion of,  respecting  change  in  rule  of 
suffrage,  II.  36.  Views  of,  respecting 
national  government,  40 ; Senate,  41 ; 
revision  by  Congress  of  State  legis- 
lation, 54 ; revisionary  check  on  leg- 
islation by  executive,  58  ; use  of  force 
against  States,  62 ; Constitution,  106  ; 
rule  of  suffrage  for  House  of  Repre- 
sentatives, 135;  dissolution  of  Union, 
136;  Western  States,  152.  How  far 
in  favor  of  executive  during  “good 
behavior,”  173.  Views  of,  respecting 
difference  between  Constitution  and 
league,  184;  naturalization,  205.  In 
favor  of  larger  House  of  Representa- 
tives, 213.  Views  of,  respecting  eligi- 
bility of  members  of  Congress  to  of- 
fice, 250 ; seat  of  government,  275.  In 
favor  of  tax  on  exports,  284.  Views 
of,  respecting  slave-trade,  304.  Prop- 
osition of,  respecting  Indian  affairs, 
327.  Views  of,  respecting  legislation 
of  Congress  of  Confederation  over 
Northwestern  Territory,  345,  348, 
351.  Views  and  votes  of,  concern- 
ing Northwestern  Territory,  348. 
Holds  regulation  of  commerce  to  be 
indivisible,  371.  Views  of,  respecting 
treason,  386.  Motion  of,  respecting 
election  of  President,  403.  Views  of, 
respecting  amendment  of  Constitu- 
tion, 477 ; consequences  of  rejec- 
tion of  Constitution,  487.  Proposed 


INDEX. 


637 


amendment  of  Constitution  by  Con- 
gress, defeated  by,  500.  Essays  of, 
in  Federalist,  503.  A leading  advo- 
cate of  Constitution  in  Virginia,  506. 
Reply  of,  to  opponents  of  Constitu- 
tion in  Virginia  convention,  558. 
Description  of  new  government  by, 
559.  Efforts  of,  in  Virginia  conven- 
tion, 564.  Opinion  of,  respecting 
conditional  ratification  of  Constitu- 
tion, 588. 

Magazines,  authority  of  Congress  over, 
II.  340. 

Majority,  principle  of,  seldom  to  be 
departed  from,  II.  299. 

Mandamus  Councillors,  appointment  of, 
in  Massachusetts,  I.  25.  Treatment 
of,  by  the  people,  25. 

Manly,  John,  commander  of  the' 
Lee,  I.  74.  Captures  a prize,  75. 
Maritime  Jurisdiction,  of  courts  of 
United  States,  II.  445.  Under  Con- 
federation, 445. 

Marshall,  John,  a leading  advo- 
cate of  Constitution  in  Virginia,  II. 
506. 

Martin,  Luther,  views  of,  respect- 
ing Constitution,  II.  92, 121 ; rule  of 
suffrage  for  House  of  Representatives, 
135 ; manner  of  voting  in  Senate, 
186.  Motion  of,  respecting  admis- 
sion of  States,  354.  Supremacy  of 
Constitution,  &c.  proposed  by,  374. 
Great  opposition  of,  to  Constitution, 
484,  512.  Communication  of,  to 
legislature  of  Maryland,  512;  chief 
ground  of,  513. 

Mart  indale,  captain  in  the  Revolu- 
tionary naval  force,  I.  74. 

Maryland,  a proprietary  government, 

I.  5.  Constitution  of,  formed,  122. 
Remonstrates  against  the  claims  to 
Western  lands,  131,  421.  Ratifies 
the  Constitution,  136.  Action  of, 
commended,  138.  Appoints  and 
instructs  delegates  to  the  Conven- 
tion, 369.  Action  of,  upon  the 
Articles  of  Confederation,  501.  Del- 
egates from,  divided  in  opinion, 

II.  121.  Divided  on  question  of 
national  legislature,  133  ; equality 
of  suffrage  in  House  of  Representa- 
tives, 138.  In  favor  of  equal  repre- 
sentation of  States  in  Senate,  141, 
165.  Had  six  representatives  in  first 
House,  149.  Opposed  to  census  of 
free  inhabitants,  153  ; executive  hold- 
ing office  during  “ good  behavior,” 
173.  In  favor  of  referring  Constitu- 


tion to  State  legislatures,  184;  each 
State  having  one  vote  in  Senate,  186, 
227.  Vote  of,  respecting  citizenship, 
as  qualification  for  office,  209  ; money 
bills,  216,  218.  Opposed  to  nine 
years’  citizenship  as  qualification  of 
senator,  224 ; taxing  exports,  296. 
Vote  of,  respecting  slave-trade,  305  ; 
admission  of  States,  354.  Action 
of  legislature  of,  respecting  Constitu- 
tion, 511.  Convention  of,  to  vote 
on  Constitution,  514  ; importance  of 
action  of,  542 ; efforts  made  in,  to 
amend  Constitution,  defeated,  543. 

Mason,  George,  views  of,  respecting 
Constitution,  II.  123.  Objections  of, 
to  compound  ratio  of  representation, 
151.  Views  of,  respecting  money 
bills,  218.  Opposed  to  tax  on  ex- 
ports, 294.  Proposition  of,  to  re- 
strain grants  of  perpetual  revenue, 
319.  Views  of,  respecting  militia, 
337.  Refused  to  sign  Constitution, 
why,  485,  509.  Great  ability  of,  505. 
Opposed  to  Constitution,  505.  In 
favor  of  submitting  Constitution  to 
people  of  Virginia,  509.  Arguments 
of,  against  Constitution,  in  Virginia 
convention,  557. 

Massachusetts,  a charter  government, 

I.  5.  Provincial  governor  of,  ap- 
pointed by  the  crown,  5.  Council  of, 
chosen  by  Assembly,  5.  Represen- 
tatives of,  chosen  by  the  people,  5. 
Appoints  delegates  to  first  Continen- 
tal Congress,  12.  Colonial  govern- 
ment of,  how  ended,  25.  Provincial 
Congress  of,  how  formed,  26.  Au- 
thority assumed  by  Provincial  Con- 
gress, 26.  Applies  to  the  Continen- 
tal Congress,  for  direction  and  assist- 
ance, 31  ; about  government,  32. 
Army  raised  by,  in  1775,  31.  Issues 
letters  of  marque  and  reprisal,  75. 
Establishes  prize  court,  75.  Money 
borrowed  of,  by  General  Washington, 
80.  Constitution  of,  formed,  121. 
Objections  of,  to  the  half-pay,  191  ; 
answered  by  Madison,  193.  Act  of, 
concerning  British  debts,  253.  Con- 
stitution of,  dangers  to  which  it  was 
exposed,  263.  insurrection  in,  266, 

II.  83.  Disaffection  in,  extensive,  I. 
273.  Cedes  claims  to  Western  Ter- 
ritory, 300.  Proceedings  of,  respect- 
ing a general  Convention,  334.  Con- 
dition of  the  trade  of,  in  1785-86, 
335.  Legislature  of,  proposes  a 
general  Convention,  336  ; resolutions 


638 


INDEX. 


of,  not  presented  to  Congress,  337. 
Resolution  of,  for  a general  Conven- 
tion, 361.  Appoints  and  instructs 
delegates  to  the  Convention,  369. 
Opposed  to  equality  of  suffrage  in 
House  of  Representatives,  II.  138; 
equal  representation  of  States  in  Sen- 
ate, 141,  217.  Divided  on  question  of 
equal  vote  of  States  in  Senate,  148, 
165.  Had  eight  representatives  in 
first  House,  149.  In  favor  of  census 
of  free  inhabitants,  153.  Opposed  to 
executive  holding  office  during  “ good 
behavior,”  173.  Qualifications  of 
voter  in,  188.  In  favor  of  property 
qualification  for  national  officers,  204. 
Vote  of,  respecting  citizenship  as 
qualification  for  office,  209  ; money 
bills,  216,  218.  Opposed  to  nine 
years’  citizenship  as  qualification  of 
Senator,  224  ; each  State  having  one 
vote  in  Senate,  227.  Sentiments  of, 
respecting  holding  of  office  by  mem- 
bers of  Congress,  249.  In  favor  of 
States  paying  members  of  Congress, 
259.  Opposed  to  taxing  exports, 
296.  Vote  of,  respecting  slave-trade, 
305.  Slavery  in,  as  early  as  1630, 
454.  Parties  in,  for  and  against 
Constitution,  501.  Reception  of 
Constitution  in,  501.  Convention 
in,  to  vote  on  Constitution,  502, 
530.  Formidable  opposition  to  Con- 
stitution in  convention  of.  529.  High 
rank  of,  530.  Vacillation  of,  530. 
Revolutionary  history  of,  530.  Anx- 
iety respecting  action  of,  on  Consti- 
tution, 531.  insurrection  in,  effect 
of,  531.  Constitution  exposed  to 
peculiar  hazard  in,  531  ; ratified  in, 
by  compromise,  531.  Constitution 
of,  excellence  of,  531.  Parties  in 
convention  of,  532.  Convention  in, 
amendments  to  Constitution  recom- 
mended by,  532,  538,  539 ; oppo- 
nents of  Constitution  in,  533,  534  ; 
eminent  men  in,  534.  Probable  dis- 
astrous effects  of  rejection  of  Con- 
stitution by,  535.  Convention  of, 
proceedings  in,  536  ; discussion  in, 
respecting  Hancock’s  amendments  to 
Constitution,  538  ; patriotic  conduct 
of,  539.  Enthusiasm  kindled  by  ac- 
tion of,  541. 

Mazzei,  Philip,  letter  to,  by  Madi- 
son, I.  431 . 

McKean,  Thomas,  views  of,  respect- 
ing Constitution,  II.  523.  Public 
services  of,  524. 


Mifflin,  General,  sent  by  "Washing- 
ton to  the  Congress,  I.  98. 

Military  Posts,  retained  by  the  British 
after  the  treaty,  I.  256,  259. 

Militia,  relation  of,  to  the  Conti- 
nental Congress,  I.  35.  Committee 
on,  II.  319.  Of  States,  power  of 
general  government  over,  334 ; in- 
efficient as  troops  in  Revolution,  334 ; 
lack  of  uniformity  among,  335; 
power  of  general  government  over, 
necessaryq  3.36  ; how  to  be  disciplined, 
337  ; when  Congress  may  call  forth, 
338 ; President  commander-in-chief 
of,  413 ; cannot  call  out  without 
authority  of  Congress,  413. 

Ministers.  See  Ambassadors. 

Mint,  establishment  of,  I.  444. 

Mississippi  River,  controversy  and  ne- 
gotiations respecting  navigation  of, 
1.310;  referred  to  the  new  govern- 
ment, 327.  Navigation  of,  a topic  of 
opponents  of  Constitution  in  Vir- 
ginia convention,  II.  565  ; Madi- 
son’s views  respecting,  567. 

Mississippi  Valley,  people  of,  spirit  of 
the,  I.  319  ; retaliate  upon  the  Span- 
ish authorities,  322 ; form  commit- 
tees, &c.,  323. 

Monarchical  Government,  dangers  of 
attempting  to  establish,  I.  370. 

Monarchy,  detested  by  people  of  United 
States,  II.  237,  492.  Proposed,  ru- 
mors of,  492.  Attempt  to  introduce, 
averted  by  Constitution,  494. 

Money,  power  to  coin,  given  to  Con- 
gress, II.  328  ; borrow,  and  emit 
bills,  328. 

Money  Bills,  Originated  by  House  of 
Representatives,  II.  146.  Provision 
concerning,  objected  to,  147  ; origin 
of,  214.  Originated  by  House  of 
Commons,  216.  Hallam’s  discus- 
sion respecting,  216.  Vote  of  States 
respecting,  216.  Different  proposi- 
tions in  Convention  repecting,  219. 
May  be  amended  in  Senate,  222. 

Montesquieu,  political  discussions 
of,  alluded  to,  I.  377. 

Morris,  Gouverneur,  Enters  the 
Revolutionary' Congress,  I.  127.  Birth 
of,  440.  Public  services  of,  440. 
Chosen  Assistant  Financier,  443. 
Author  of  the  decimal  notation,  443. 
Prepares  the  text  of  the  Constitution, 
444.  Character  of,  444.  First  Min- 
ister to  France,  447.  Senator  from 
New  York,  447.  Invited  to  write  in 
The  Federalist,  447.  Death  of,  447. 


INDEX. 


639 


Action  of,  respecting  change  in  rule 
of  suffrage,  II.  36.  A member  of 
committee  to  apportion  representa- 
tives, 148.  Views  of,  respecting  At- 
lantic and  Western  States,  1 52 ; re- 
specting compound  ratio  of  repre- 
sentation, 152.  Proviso  of,  respect- 
ing taxation  and  representation,  158. 
Views  of,  respecting  choice  of  exec- 
utive, 174.  Remarks  of,  respecting 
slave-trade,  281.  In  favor  of  tax  on 
exports,  284.  Views  of,  on  concession 
to  Southern  States,  293.  Committee 
of  compromise  proposed  by,  301. 
Proposition  of,  respecting  vacant 
lands,  355. 

Morris,  Robert,  on  a committee  to 
inform  Washington  of  extraordinary 
powers,  I.  101.  Laments  the  ab- 
sence of  some  great  revolutionary 
characters,  104.  Appointed  Super- 
intendent of  Finances,  174.  Resig- 
nation of,  198. 

Mutiny,  at  Philadelphia,  of  federal 
troops,  I.  220. 


N. 

Natchez,  seizure  of  property  at,  by 
Spanish  authorities,  I.  318. 

National  Government,  how  distinguish- 
ed from  “ federal,”  II.  33.  Necessi- 
ties of,  34.  To  be  kept  distinct  from 
State  governments,  37.  By  wiiat 
States  preferred,  117.  Arguments 
in  favor  of,  122  ; theoretically  sound, 
126  ; strengthened  by  facts  of  previ- 
ous history,  127.  Supposed  tenden- 
cy of,  to  absorb  State  sovereignties, 
128.  Self-defence  a principal  object 
of,  292. 

National  Legislature , how  to  be  con- 
stituted, ii.  35.  Divided  into  two 
branches,  36.  Representation  in,  di- 
verse views  respecting,  36  ; as  affect- 
ed by  State  interests,  43  ; difficulty 
in  fixing  ratio  of,  43.  Unanimity  re- 
specting powers  of,  in  Convention,  50. 
Negative  by,  on  State  legislatures, 
proposed,  51.  Must  operate  directly 
on  people,  63.  Proposed  powers  of, 
65. 

Naturalization , a subject  of  solicitude, 
II.  196.  Formerly  a State  power, 
198,  199.  A proper  subject  of  con- 
stitutional provision,  200.  Power  of, 
transferred  from  State  to  national 
government,  201.  Views  of  Hamil- 


ton and  Madison  respecting,  205. 
Embarrassments  of  subject,  205. 
Uniform  rule  of,  power  to  establish, 
given  to  Congress,  328. 

Naval  Force,  employment  of,  in  Mas- 
sachusetts Bay,  I.  73. 

Navigation  Act,  report  of  committee  of 
detail  respecting,  II.  290,  301.  Posi- 
tion of  Southern  States  respecting, 
297.  Two-thirds  vote  proposed  by 
them  to  be  required  for,  299.  In- 
terest of  different  States  respecting, 
301.  Passage  of,  by  majority,  agreed 
to,  304. 

Navy,  origin  of  the  Revolutionary,  I. 
73.  Want  of,  II.  298.  Power  of 
Congress  to  provide  and  maintain, 
334  ; to  make  rules  for,  334.  Power 
of  President  to  employ,  4 1 3.  Presi- 
dent commander-in-chief  of,  413. 

Newark,  Washington’s  evacuation  of, 
I.  98. 

Newburgh  Addresses,  authorship  and 
style  of,  I.  168.  Copy  of,  sent  to  the 
States,  177.  Note  on,  194. 

New  England,  confederation  of,  in 
1643,  II.  453. 

New  Hampshire,  a provincial  govern- 
ment, I.  4.  Ante-Revolutionary  gov 
emmentof,  4.  Constitution  of,  form 
ed,  119.  Appoints  and  instructs  del- 
egates to  the  Convention,  369.  Late 
attendance  of,  in  Convention,  II.  24 
Had  three  representatives  in  first 
House,  149.  In  favor  of  property 
qualification  for  national  officers,  204. 
Vote  of,  respecting  citizenship, as  qual- 
ification for  office,  209  ; respecting 
money  bills,  218  ; respecting  slave- 
trade,  305.  In  favor  of  taxing  ex- 
ports, 296.  Vote  on  Constitution  in, 
postponed,  why,  510;  effect  of,  on 
parties  in  Virginia,  510.  Population 
of,  easily  led  to  oppose  Constitution, 
514.  Convention  of,  to  vote  on  Con- 
stitution, 514  ; members  of,  instruct- 
ed to  reject  Constitution,  529  ; amend- 
ments presented  to,  541  ; majority 
of,  at  first  opposed  to  Constitution, 
541 ; adjournment  of,  effect  of,  541. 
Action  of  Federalists  of,  541.  Con- 
vention of,  meets,  on  adjournment, 
549 ; anxiety  respecting  action  of, 
549.  Ratification  of  Constitution  by, 
573.  Ninth  State  to  ratify  Constitu- 
tion, 578. 

New  Jersey,  a provincial  government, 
I.  4.  Washington’s  retreat  through, 
97.  Constitution  of,  formed,  122. 


640 


INDEX. 


Proposal  of,  in  1778,  for  the  regula- 
tion of  commerce,  129.  Resists  the 
claim  of  great  States  to  Western 
lands,  131.  Ratifies  the  Confedera- 
tion, 135.  Action  of,  commended, 
138.  Attempts  to  pay  its  quotas  in 
paper  money,  242.  Recommends  the 
regulation  of  commerce,  277.  Ap- 
points and  instructs  delegates  to  the 
Convention,  368.  Representation  of, 
concerning  the  Articles  of  Confedera- 
tion, 493.  Act  of,  accepting  them, 
497.  Purely  “ federal  ” government 
proposed  by,  II.  92.  Hamilton’s  plan 
of,  radical  objections  to,  99  ; con- 
demned by  Madison,  106.  Opposed 
to  division  of  legislature,  133.  In 
favor  of  equality  of  suffrage  in  House 
of  Representatives,  138 ; of  equal 
representation  of  States  in  Senate, 
141,  148, 165.  Had  four  representa- 
tives in  first  House,  149.  In  favor  of 
census  of  free  inhabitants,  153  ; of 
executive  holding  office  during  “ good 
behavior/’  173.  Vote  of,  respecting 
citizenship  as  qualification  for  office, 
209  ; respecting  money  bills,  216, 218. 
In  favor  of  each  State  having  one 
vote  in  Senate,  227.  Vote  of,  re- 
specting eligibility  of  members  of 
Congress  to  office,  251  ; respecting 
representation  of  slaves,  293  ; re- 
specting slave-trade,  305  ; respecting 
admission  of  States,  354.  In  favor 
of  taxing  exports,  296.  Opposed  to 
restricting  President  to  stated  salary, 
407.  Ratification  of  Constitution  by, 
515.  Convention  of,  524.  Position 
of,  respecting  Constitution,  524.  Al- 
ways in  favor  of  vesting  regulation 
of  commerce  in  general  government, 
525.  Action  of,  in  Constitutional 
Convention,  respecting  representa- 
tion, 525. 

New  States,  admission  of,  under  the 
Confederation,  I.  292  ; under  the  Or- 
dinance of  1787,  308.  See  Western 
Territory  and  Northwestern  Terri- 
tory. 

New  York,  Constitution  of,  formed,  I. 
122.  Magnanimity  of,  commended, 
137.  Action  of,  upon  the  revenue 
system  of  1783,  246.  Act  of,  respect- 
ing British  debts,  253.  Trespass  act 
of,  256.  Proceedings  of,  respecting 
a general  commercial  convention, 
343,  358.  Resolution  of,  for  a gen- 
eral Convention,  360  ; how  received 
in  Congress,  360.  Appoints  and  in- 


structs delegates  to  the  Convention, 
369.  Act  of,  respecting  boundaries, 
&c.,  505.  Rank  of,  at  formation  of 
Constitution,  II.  118.  Commerce  of, 
at  formation  of  Constitution,  118. 
Views  of  public  men  of,  118.  Op- 
posed to  division  of  legislature,  133. 
In  favor  of  equality  of  suffrage  in 
House  of  Representatives,  138;  in 
Senate,  141, 148.  Had  six  representa- 
tives in  first  House,  149.  Withdrawal 
of  delegates  of,  from  Convention,  165, 
182, 484,  502.  Rejection  of  Constitu- 
tion by,  probable,  182.  Vote  of,  re- 
specting money  bills,  216.  In  favor 
of  each  State  having  one  vote  in  Sen- 
ate, 227.  Reception  of  Constitution 
in,  502.  Executive  government  of, 
opposed  to  Constitution,  502.  Jeal- 
ousy of  Union  existingin,  502.  Let- 
ter of  delegates  of,  against  Constitu- 
tion, 502.  Proceedings  of  legislature 
of,  respecting  Constitution,  503 ; of 
parties  in,  respecting  Constitution, 
503.  Convention  of,  to  vote  on  Con- 
stitution, 504.  Formidable  opposi- 
tion to  Constitution  in  convention  of, 
529.  Legislature  of,  divided  on  ques- 
tion of  submitting  Constitution  to 
people,  536.  Convention  of,  impor- 
tance of  action  of,  542  ; time  of  meet- 
ing of,  549  ; anxiety  respecting  ac- 
tion of,  549 ; met  at  Poughkeepsie, 
549  ; Hamilton  leading  spirit  in,  568  ; 
discussion  in,  respecting  system  of 
representation  proposed  by  Constitu- 
tion, 573.  Opponents  of  Constitu- 
tion in,  arguments  and  plan  of,  572 ; 
Hamilton’s  reply  to,  572.  Effect  on, 
of  ratification  by  New  Hampshire, 
574.  Opponents  of  Constitution  in, 
schemes  of,  584.  Numerous  amend- 
ments to  Constitution  proposed  by, 
587.  Plan  of,  to  adopt  Constitution 
conditionally,  587.  Great  struggle  in, 
over  ratification  of  Constitution,  588. 
Circular  letter  from,  to  all  other 
States,  588.  Federalists  of,  justified 
by  Washington,  590  ; complaints 
against,  591. 

New  York  City,  applies  to  the  Conti- 
nental Congress  respecting  British 
troops,  I.  31 . Occupied  by  the  Brit- 
ish, 91.  Temporary  establishment 
of  seat  of  government  at,  effect  of, 
591.  Celebration  in,  of  adoption  of 
Constitution,  592.  Honors  paid  by, 
to  Hamilton,  592. 

Nicholas,  George,  a leading  advo- 


INDEX. 


641 


cate  of  Constitution  in  Virginia,  II. 
506. 

Nobility,  title  of,  cannot  be  granted  by 
Congress,  II.  362. 

Non- Intercourse,  when  and  why  adopt- 
ed by  Colonies,  I.  23.  Association 
for,  recommended  and  adopted,  24. 

North  Carolina,  a provincial  govern- 
ment, I.  4.  Constitution  of,  formed, 
122.  Appoints  and  instructs  dele- 
gates to  the  Convention,  369.  Op- 
posed to  equality  of  suffrage  in  House 
of  Representatives,  II.  138  ; to  equal- 
ity of  votes  in  Senate,  141, 217.  Vote 
of,  respecting  equal  vote  of  States  in 
Senate,  141,  148,  165  ; respecting 
census  of  free  inhabitants,  153.  Had 
five  representatives  in  first  House, 
149.  Opposed  to  executive  holding 
office  during  “good  behavior,”  173. 
Vote  of,  respecting  citizenship  as 
qualification  for  office,  209  ; respect- 
ing money  bills,  216,  218.  Divided 
on  question  of  nine  years’  citizenship 
as  qualification  of  Senator,  224.  Op- 
posed to  each  State  having  one  vote 
in  Senate,  227  ; to  taxing  exports, 
296.  Position  of,  in  Convention,  re- 
specting slave-trade,  297,301.  Vote 
of,  respecting  slave-trade,  305 ; on 
suspension  of  habeas  corpus,  360. 
Cession  by,  in  1790,  357.  Opposed 
to  restricting  President  to  stated  sal- 
ary, 407.  Convention  of,  Anti-Fed- 
eral majority  in,  596  ; debate  in,  596  ; 
amendments  to  Constitution  pro- 
posed by,  597  ; peculiar  action  of, 
597.  Attitude  of,  placed  Union  in 
new  crisis,  603. 

Northern  States,  in  favor  of  granting  to 
government  full  revenue  and  com- 
mercial powers,  II.  292.  Chief  mo- 
tive of,  for  forming  Constitution  a 
commercial  one,  298.  Cut  off  from 
British  West  India  trade,  298.  Sep- 
arate interests  of,  different,  300. 

Northwestern  Territory  ceded  by  Vir- 
ginia, I.  137,  295.  Cession  modi- 
fied, 300.  Ordinance  respecting,  why 
framed,  301  ; provisions  of,  302  ; 
character  of,  306.  Ordinance  for, 
reported,  452.  Cession  of,  II.  15. 
Origin  and  relations  of,  &c.,  341. 
■Jefferson’s  resolve  for  organization 
of  States  in,  343.  Slavery  in,  pro- 
posals for  prohibiting,  343.  Ceded 
on  what  trusts,  347, 349.  Admission 
of  new  States  under,  see  New 
States. 


O. 

Oath,  of  office,  proposed  by  New  Jer- 
sey in  1778,  I.  130. 

Oath  of  Allegiance,  to  the  King,  re- 
ceived by  Sir  William  Howe  in  New 
Jersey,  I.  106.  To  the  United  States 
required  by  Washington  in  New  Jer- 
sey, 107  ; dissatisfaction  occasioned 
by,  107.  Propriety  of,  defended  by 
Washington,  108.  Prescribed  in 
Congress  in  1778,  109. 

Obligation  of  Contracts,  clause  respect- 
ing, taken  from  the  Ordinance  of 
1787,  I.  452. 

Officers  of  United  States,  appoint- 
ment of,  II.  417. 

Officers  of  the  Revolution,  treatment  of, 
by  Congress,  and  the  country,  1. 159. 
Pay  of,  159.  Proceedings  in  Con- 
gress respecting  half-pay  for,  160. 
Pennsylvania  line,  163.  Proceed- 
ings of,  respecting  their  pay,  165. 
See  Army  of  the  Revolution,  Half- 
pay, and  Newburgh  Addresses. 
Oligarchy,  detested  by  people  of  Unit- 
ed States,  II.  237. 

Orders  in  Council,  respecting  trade 
with  the  United  States,  I.  283.  Ef- 
forts of  Congress  to  counteract,  285. 
Effect  of,  on  Northern  States,  II.  298. 
Ordinance  of  1787,  framing  of,  I.  452. 
Admission  of  new  States  provided 
for  by,  II.  77.  Fixed  no  mode  of  ad- 
mitting new  States,  79.  Provisions 
of,  344.  Slavery  excluded  by,  344. 
Author  of,  344,  365.  Passed,  365. 
Character  of,  366.  Provision  in,  re- 
specting contracts,  occasion  of,  366. 
Extradition  of  slaves  under,  454. 
Osnaburg,  Bishop  of,  rumored  purpose 
of  loyalists  respecting,  II.  492.  Af- 
terwards Duke  of  York,  493. 


P. 

Paine,  Robert  Treats  delegate  to 
first  Continental  Congress,  I.  13. 

Palfrey,  Colonel,  sent  to  New 
Hampshire  to  arrest  Tories,  I.  65. 

Paper  Money,  first  issued  by  the  Con- 
tinental Congress,  I.  78.  Signing  of, 
78.  State  systems  of,  under  Confed- 
eration, II.  310.  See  Rhode  Island. 

Pardon,  President’s  power  of,  II.  413. 
See  Treason. 

Parliament,  British,  authority  of,  over 
trade,  how  recognized  by  first  Conti- 


YOL.  II. 


81 


642 


INDEX. 


nental  Congress,  I.  20.  Two  houses 
in,  origin  of,  II.  130;  mutual  rela- 
tions of,  130.  Corruption  in,  origin 
and  extent  of,  242  ; effect  of  knowl- 
edge of,  on  framers  of  Constitution, 
243.  Necessity  of  officers  of  state, 
&c.  sitting  in,  254.  Analogy  of  Con- 
gress to,  254. 

Parsons,  Theophilus,  motion  of,  in 
Massachusetts  Convention,  to  ratify 
Constitution,  II.  537.  Form  of  rati- 
fication and  proposed  amendments 
drawn  by,  541. 

Patents  for  useful  inventions,  subject 
of,  brought  forward  by  Pinckney,  II. 
339.  State  legislation  concerning, 
339.  Power  over,  surrendered  to 
Congress,  339. 

Patterson,  William,  mover  of 
New  Jersey  plan  of  government,  II. 
93.  Arguments  of,  in  Convention, 
93. 

Peace,  effect  of,  upon  the  country,  I. 
179.  See  Treaty  of  Peace. 

Peace  Establishment.  See  Washington 
and  Hamilton. 

Pendleton,  Chancellor,  a leading 
advocate  of  Constitution  in  Virginia, 
II.  506. 

Pennsylvania,  a proprietary  govern- 
ment, I.  5.  Constitution  of,  formed, 
122.  Stop-law  of,  253.  Appoints 
and  instructs  delegates  to  the  Con- 
vention, 368.  Had  but  one  chamber 
in  legislature,  II.  132.  Opposed  to 
election  of  Senators  by  State  legisla- 
tures, 135  ; to  equality  of  suffrage  in 
House  of  Representatives,  138 ; to 
equal  representation  of  States  in 
Senate,  141,  148,  165,  217.  Had 
eight  representatives  in  first  House, 
149.  In  favor  of  census  of  free  in- 
habitants, 153  ; of  executive  holding 
office  during  good  behavior,  173. 
Opposed  to  property  qualification  for 
office,  189.  Constitution  of,  citizen- 
ship under,  206.  Vote  of,  respecting 
citizenship  as  qualification  for  office, 
209;  respecting  money  bills,  218. 
Opposed  to  nine  years’  citizenship  as 
qualification  of  Senator,  224  ; to  each 
State  having  one  vote  in  Senate,  227  ; 
to  impeachments  being  tried  by  Sen- 
ate, 262.  In  favor  of  taxing  exports, 
296.  Vote  of,  respecting  slave-trade, 
305.  Ratification  of  Constitution  by, 
515.  Convention  of,  first  to  meet, 
519.  Second  State  in  population,  in 
1787,  519.  Western  counties  of,  in- 


surrection in,  521  ; opposition  of,  to 
Constitution,  524. 

People  of  America,  when  not  associated 
as  such,  I.  16.  Sole  original  source 
of  political  power,  II.  38,  471,  482. 
Will  of,  how  to  be  exercised,  471  ; 
on  a new  exigency,  how  to  be  ascer- 
tained, 483. 

Petition,  right  of  assembling  for,  as- 
serted, I.  23.  Of  Continental  Con- 
gress to  the  King,  23,  38. 

Philadelphia , threatened  loss  of,  to  the 
enemy,  I.  99.  Falls  into  the  hands 
of  the  enemy,  113.  Fought  for,  at 
the  battle  of  the  Brandywine,  113. 
The  scene  of  many  great  events,  II. 
519.  Demonstration  at,  in  honor  of 
adoption  of  Constitution,  582. 
Pickering,  Timothy,  suggests  acad- 
emy at  West  Point,  I.  218. 
Pinckney,  Charles  Cotesworth, 
Revolutionary  services  of,  I.  454. 
Views  of,  respecting  the  requisite  re- 
form, 455 ; on  the  slave-trade,  456, 
459,  460  ; respecting  consequences 
of  rejection  of  Constitution,  487. 
Proposition  of,  respecting  taxes  on 
exports,  II.  189  ; respecting  extradi- 
tion of  slaves,  189, 452.  Notifies  Con- 
vention of  position  of  South  Carolina 
concerning  tax  on  exports,  280.  In 
favor  of  Constitution,  510.  Writes 
to  Washington  of  adoption  of  Consti- 
tution by  South  Carolina,  544.  Fi- 
delity of,  to  South  Carolina,  545. 
Arguments  of,  in  South  Carolina 
convention,  548. 

Pinckney,  Charles,  plan  of  gov- 
ernment submitted  by,  II.  32.  Propo- 
sition of,  respecting  House  of  Repre- 
sentatives, negatived,  40.  Suggestions 
of,  respecting  public  debt,  revenue, 
&c.,  319.  In  favor  of  Constitution, 
510. 

Piracy , nature  of,  II.  331.  Power  of 
Congress  to  define  and  punish,  331. 
Pitt,  William,  designs  commercial 
relations  with  the  United  States,  I. 
282.  His  bill  to  effect  them,  283. 
His  extraordinary  opportunities,  413. 
Estimate  of,  414. 

Political  Science,  among  the  ancients, 

I.  374.  In  the  Middle  Ages  of  Eu- 
rope, 375 ; in  England,  376 ; in 
France,  377. 

Popular  Governments,  American  theory 
of,  I.  261. 

Population  of  States  in  1790,  table  of, 

II.  55. 


INDEX. 


643 


Ports,  no  preference  to  be  given  to, 
II.  324. 

Post-Office  department,  Continental, 
first  established,  I.  35  ; colonial,  433. 
Power  to  establish,  extended  to  post- 
roads,  II.  328. 

Preamble  of  Constitution,  as  reported 
and  adopted,  II.  372;  language  of, 
important,  373. 

President,  making  of  treaties  by, 
with  consent  of  Senate,  II.  234. 
Officers  proposed  to  be  appoint- 
ed by,  with  consent  of  Senate,  234. 
Re-eligibility  of,  arguments  in  favor 
of,  235.  Choice  of,  proposed  meth- 
od of,  235  ; by  Senate,  objections 
to,  236,  392  ; ultimate,  by  House  of 
Representatives,  240,  394.  Revision- 
ary control  over,  where  to  be  lodged, 
239.  Extensive  patronage  of,  252. 
Subject  to  impeachment,  261;  for 
what  causes,  397.  Veto  power  of, 
264.  Objections  of,  to  law,  to  be  en- 
tered on  journal  of  Congress,  264. 
Choice  of,  direct,  by  people,  nega- 
tived, 388  ; by  electors,  objections  to, 
388 ; advantages  of,  389  ; method 
of,  390.  Term  of  office  of,  proposed 
to  be  seven  years,  392.  Choice 
of,  by  majority  of  electors,  objec- 
tions to,  393.  Vacancy  in  office 
of,  397;  when  Congress  to  provide 
for,  401 . “ Inability  ” of,  to  discharge 
duties,  meaning  of,  397  ; how  ascer- 
tained, 397.  Insanity  of,  397.  Death 
of,  and  of  Vice-President,  398.  Choice 
of,  changes  in  mode  of,  400 ; if  not 
made  before  4th  of  March,  400;  by 
House  of  Representatives,  to  be  from 
three  highest  candidates,  400.  Qual- 
ifications of,  404.  Pay  of,  arguments 
in  favor  of,  404  ; not  to  be  increased 
nor  diminished  during  term  of  office, 
406 . Forbidden  to  receive  more  than 
stated  salary,  407.  Council  for,  ques- 
tion concerning,  407.  May  require 
opinions  of  cabinet  officers,  408. 
Alone  responsible  for  conduct  of  ex- 
ecutive department,  409.  Powers  of, 
409 ; to  make  war  and  peace,  41 1 ; 
over  State  militia,  413;  to  pardon 
offences,  413  ; to  appoint  officers,  417. 
“Executive  power”  vested  in,  mean- 
ing of,  412.  Oath  of,  to  execute  laws, 
412.  Commander-in-chief,  413.  To 
prosecute  war,  413.  Treaty-making 
power  of,  414.  To  receive  ambassa- 
dors, &c.,  41 5.  Cannot  create  offices, 
418.  To  inform  Congress  of  state 


of  Union,  419.  To  recommend  meas- 
ures to  Congress,  419.  May  call  ex- 
trasessions of  Congress,  419.  When 
may  adjourn  Congress,  419. 

Pringle,  John  Julius,  in  favor  of 
Constitution,  II.  510. 

Prize-Courts,  want  of,  under  the  Revolu- 
tionary government,  I.  73.  Establish- 
ment of,  urged  by  Washington,  75. 
Of  Massachusetts,  trials  in,  75.  Co- 
lonial, appeals  from,  to  Congress,  76. 
Under  Constitution,  II.  330. 

Property,  urged  as  basis  of  representa- 
tion, II.  148.  As  a qualification  of 
elector,  148  ; for  office,  187,  202. 

Proprietary  Governments,  form  and 
character  of,  I.  5. 

Protections,  issued  by  Sir  William 
Howe  in  New  Jersey,  I.  106.  Sur- 
render of,  required  by  Washington, 
106. 

Provincial  Governments,  form  and  char- 
acter of,  I.  4. 

Public  Lands.  See  Western  Territory, 
Northwestern  Teiritoru,  and  Ordinance 
of  1787. 


Q- 

Qualifications,  of  national  officers,  pro- 
posals respecting,  II.  186  ; landed,  re- 
jected, 187  ; property,  an  embarrass- 
ing subject,  202.  Of  electors,  187, 
194,  200.  Of  voter  in  Massachusetts, 
188.  Of  members  of  Congress,  194. 
Of  citizenship,  embarrassments  re- 
specting, 205 ; attempt  to  exempt 
certain  persons  from  rule  respecting, 
205.  Of  Senators,  223.  Of  Vice- 
President,  401.  Of  President,  404. 
Of  religious  test,  never  to  be  required, 
479. 

Queen’s  County,  Long  Island,  inhabit- 
ants of,  to  be  disarmed,  I.  68. 
Quorum,  discussions  in  Convention 
respecting,  II.  262. 

Quotas,  first  apportionment  of,  among 
the  Colonies,  I.  34.  Of  troops  in 
1776,  92.  See  Requisitions. 


R. 

Ramsay,  David,  Dr.,  in  favor  of 
Constitution,  II.  510. 

Randolph,  Edmund,  urges  Wash- 
ington to  attend  the  Convention,  I. 
365.  Revolutionary  services  of,  480. 


644 


INDEX. 


Governor  of  Virginia,  481.  Course 
of,  in  the  Convention,  481.  Reasons 
of,  for  supporting  the  Constitution, 
481.  Genealogy  of,  485.  Plan  of 
government  proposed  by,  II.  32,  410. 
A member  of  committee  to  appor- 
tion representatives,  148.  Objections 
of,  to  compound  ratio  of  representa- 
tion, 151.  Proposition  of,  respecting 
census,  162;  to  strikeout  “wealth” 
from  rule  of  representation,  164.  In 
favor  of  confining  equality  of  States 
in  Senate  to  certain  cases,  165. 
Views  of,  respecting  money  bills, 
218.  Resolution  of,  respecting  ad- 
mission of  new  States,  349.  Clause 
introduced  by,  respecting  death  of 
President,  &c.,  403.  Refused  to  sign 
Constitution,  why,  485,  555.  Posi- 
tion of,  respecting  Constitution,  506. 
Advocated  adoption  of  Constitution 
in  Virginia  convention,  556. 

Randolph,  Peyton,  President  of 
first  Continental  Congress,  I.  13 ; 
of  second  Continental  Congress,  28. 
Death  and  character  of,  28. 

Ratification  of  Constitution,  as  mark- 
ing character  of  government,  II.  85. 
Different  theories  respecting,  177. 
Mode  of,  375  ; resolutions  respecting, 
375  ; purpose  of,  375 ; an  embarrass- 
ing question,  479.  Vote  of  States 
respecting,  483,  515.  By  only  part 
of  States,  effect  of,  484.  Unanimous, 
could  not  be  required,  484.  By  nine 
States  sufficient,  485.  Pageants  in 
honor  of,  540.  Public  rejoicings  in  Bal- 
timore at,  543.  By  New  Hampshire, 
573,  578.  By  Virginia,  578;  how 
finally  effected,  579;  form  of,  581. 
Vitiated  by  condition,  in  Madison’s 
opinion,  588.  Great  struggle  over, 
in  New  York,  588.  See  the  different 
States. 

Records  and  Judicial  Proceedings  of 
States,  full  faith  to  be  given  to,  in 
other  States,  II.  449.  Proof  and 
effect  of,  449. 

Read,  Geohge,  views  of,  respecting 
rule  of  suffrage  for  House  of  Repre- 
sentatives, II.  135. 

Regulation  of  Commerce  proposed  by 
New  Jersey  in  1778,  I.  129.  Not 
provided  for  by  the  Confederation, 
148.  Advantages  of,  not  perceived, 
179.  Origin  of,  as  a national  power, 
276.  Washington’s  views  respect- 
ing, 334.  Popular  meetings  in  Bos- 
ton in  favor  of,  336.  Policy  of 


Congress  respecting,  in  1785  - 86, 
337. 

Representation,  views  of  members  of 
Convention  respecting,  II.  18.  In 
Congress,  different  views  respecting, 
36  ; difficulty  in  fixing  ratio  of,  44.  As 
affected  by  State  interests,  43.  Origi- 
nal division  between  States  respect- 
ing, 50.  Under  Virginia  and  New 
Jersey  plans,  105.  Great  difficulty 
in  adjusting,  108.  Difficulty  of  fix- 
ing different  basis  of,  for  two  houses 
of  Congress,  133.  Committee  to  ad- 
just whole  system  of,  145.  Dr.  Frank- 
lin’s proposal  in  Congress  concern- 
ing, 146.  Ratio  of,  in  House  of 
Representatives,  147.  Of  slaves,  149. 
Compound  ratio  of,  depending  on 
numbers  and  wealth,  proposed,  149  ; 
objections  to,  151 ; how  to  be  applied, 
156.  By  numbers,  as  affected  by 
slaves,  153,  291.  And  taxation  to 
go  together,  156.  System  of,  pro- 
posed by  Constitution,  discussion  on 
in  New  York,  573. 

Representatives,  part  of  the  Provincial 
government,  1.4.  In  the  charter  gov- 
ernments, how  chosen,  5.  Appor- 
tionment of,  objections  to,  II.  148 ; 
in  first  House,  how  made,  148. 

Representative  Government  familiar  to 
the  American  people,  I.  117. 

Reprisals  authorized  by  the  Continen- 
tal Congress,  I.  34. 

Republican  Government  involved  in  the 
effort  to  make  the  Constitution,  I. 
391.  Guaranteed  to  States,  II.  177  ; 
by  Constitution,  458.  Guaranty  of, 
to  States,  object  of,  468 ; meaning 
of,  in  America,  469. 

Republican  Liberty,  nature  of,  II.  8. 
How  to  be  preserved,  9. 

Resolutions  as  referred  to  committee  of 
detail,  II.  190. 

Requisitions,  provision  for,  under  the 
Confederation,  1. 147.  Of  1781,  156. 
Made  and  not  complied  with,  174. 
From  1782  to  1786,  how  treated, 
180.  In  1784,  240.  In  1785,  242. 
In  1786,  242.  Supply  received  from, 
in  1781  - 1786,  243  ; inadequacy  of, 
declared  by  Congress,  245.  Effect 
of,  on  the  proposed  revenue  system, 
244. 

Revenue,  report  of  committee  of  detail 
respecting,  II.  289.  Power  over,  gen- 
erally conceded  to  new  government, 
290.  Different  systems  of,  under 
Confederation,  310.  Powers  of  gov- 


INDEX. 


645 


emment,  influence  of,  311.  Power, 
qualifications  of,  proposed,  320. 
From  imports,  easiest  mode  of  par- 
ing expenses  of  government,  528. 
Revenues,  of  the  Confederation,  I.  147. 
Want  of  power  in  Confederation  to 
obtain,  II.  280.  Numerous  questions 
respecting,  280.  Collection  of,  by 
Congress,  323. 

Revenue  Bills,  privilege  of  originating, 
views  of  members  of  Convention  re- 
specting, II.  221  ; restricted  to  House 
of  Representatives,  221. 

Revenue  System  of  1783,  origin  and 
purpose  of,  I.  175.  Modified  by 
Congress,  180.  Defeated  by  New 
York,  180.  Design  of,  185.  Effect 
of  its  proposal,  186.  Character  of, 
224.  Under  consideration  in  1784, 
240.  How  acted  on  in  1786,  244. 
New  appeal  of  Congress  on  the  sub- 
ject of,  245.  Every  State  assents  to, 
but  New  York,  246.  Act  of  New 
York  concerning,  246.  Hamilton’s 
answer  to  the  New  York  objections 
to,  247.  New  York  again  appealed 
to  respecting,  247 ; refuses  to  ac- 
cede, 248.  Action  of  New  York  re- 
specting, 343.  Final  appeal  of  Con- 
gress for,  344.  Rejected  by  New 
York,  345,  359.  Address  on,  writ- 
ten by  Madison,  422. 

Revolution , right  of,  II.  473. 
Revolutionary  Comjress,  take  up  the 
Articles  of  Confederation,  I.  113. 
Government  of,  breaking  down,  115. 
Change  in  the  members  of,  after 
1777,  125.  Leading  members  of,  in 
1777  and  1778,  126;  in  1776,  127. 
Weakness  of,  II.  14.  See  Congress. 
Revolutionary  Government,  defects  of, 
I.  55. 

Rhode  Island,  a charter  government,  I. 
5.  Resists  the  claim  of  the  great 
States  to  Western  lands,  131.  Refuses 
to  grant  imposts  to  Congress,  174. 
Hamilton’s  answerto,  177.  Attempts 
to  pay  its  quotas  in  paper  money, 
242.  Refusal  of,  to  grant  duties  on 
imposts,  422.  Not  represented  in  Con- 
stitutional Convention,  II.  23,  181. 
Did  not  assent  to  revenue  system  of 
1783,  24.  Admitted  to  Union  in 
1790,  25.  Interests  of,  attended  to 
by  Convention,  26.  Had  one  repre- 
sentative in  first  House,  149.  Rati- 
fication of  Constitution  by,  improb- 
able, 181.  Reason  of,  for  not  attend- 
ing Convention,  329.  Took  no  part 


in  formation  of  Constitution,  484. 
Opposition  to  Constitution  in,  pecu- 
liarly intense,  598 ; causes  of,  598. 
Jealous  of  other  States,  598.  Prin- 
ciples of  founders  of,  falsely  ap- 
plied, 598.  Paper  money  party  in, 
great  power  of,  599.  Great  antago- 
nism in,  between  town  and  country, 
600.  Opponents  of  Constitution  in, 
ridiculed  and  scorned,  600.  Great 
want  of  enlightenment  in,  601.  Ac- 
tion of  General  Assembly  of,  on  Con- 
stitution, 602.  People  of,  apparently 
nearly  unanimous  against  Constitu- 
tion, 602.  Final  prevalence  of  bet- 
ter counsels  in,  603.  Present  pros- 
perity of,  603.  Attitude  of,  placed 
Union  in  new  crisis,  603. 

Rights.  See  Colonies.  , 

Robinson,  Mr.,  Speaker  of  Virginia 
House  of  Burgesses,  .1.  48.  Cele- 
brated compliment  of,  to  Washing- 
ton, 48. 

Rousseau,  J.  J.,  political  discussions 
of,  alluded  to,  I.  377. 

Rule  of  Apportionment,  proposal  to 
change  from  land  to  numbers,  I.  241. 

Rutledge,  Edward,  in  favor  of 
Constitution,  II.  510.  Arguments 
of,  in  convention  of  South  Carolina, 
548. 

Rutledge,  John,  a member  of  com- 
mittee to  apportion  representatives, 
II.  148.  Motion  of,  for  assumption 
of  State  debts,  319.  In  favor  of 
Constitution,  510. 


S. 

Seat  of  Government,  action  respecting, 
II.  189.  None  under  Confederation, 
268.  History  of  establishment  of, 
268.  Grave  questions  concerning 
location  of,  274.  Impolicy  of  estab- 
lishing at  New  York,  or  Philadel- 
phia, 591.  Embarrassments  attend- 
ing selection  of,  604. 

Sectional  Jealousy,  causes  and  opera- 
tion of,  I.  371. 

S elm  an,  captain  in  the  Revolutionary 
naval 'force,  I.  74. 

Senate,  reasons  for  present  constitu- 
tion of,  II.  41 . Rule  of  suffrage  in,  48. 
Numerical  representation  in,  favored 
at  first,  49.  To  hold  office  during 
“good  behavior”  under  Hamilton’s 
plan,  100,  105.  Members  of,  chosen 
for  six  years,  134;  qualifications  of. 


646 


INDEX. 


134,  223.  Objects  of,  138  ; how  to 
be  attained,  138.  Difficulty  in  fixing 
basis  of,  139.  Mr.  Baldwin’s  model 
of,  139.  Fortunately  not  founded 
on  relative  wealth  of  States,  140. 
Votes  of  States  respecting,  141  ; rep- 
resentation in,  165.  Advantages  of 
present  constitution  of,  166.  Mem- 
bers of,  to  bo  two  from  each  State, 
186;  to  vote  per  capita,  186;  must 
have  been  citizens  nine  years,  211. 
Slight  analogy  of,  to  House  of  Lords, 
215.  Equality  of  votes  in,  by  what 
States  resisted,  217.  Choice  of  Presi- 
dent by,  in  certain  events,  proposed, 
221,  390.  Scheme  of,  tending  to 
oligarchy,  222.  May  amend  revenue 
bills,  222.  Powers  of,  as  at  first 
proposed,  223.  Number  of  members 
of,  origin  of,  224.  Method  of  voting 
in,  origin  of,  224.  Present  mode  of 
voting  in,  advantages  of,  228.  Va- 
cancies in,  how  filled,  229.  Primary 
purpose  of,  229.  Disposition  to  ac- 
cumulate power  in,  230.  Constitu- 
tion of,  great  embarrassments  respect- 
ing, 233.  Separate  action  of,  difficult 
to  determine,  234.  Consent  of,  to 
certain  acts  of  President,  necessary, 
235.  Proposed  choice  of  President 
by,  objections  to,  236.  Only  body 
fit  to  have  revisionary  control  over 
appointments,  239.  Ratification  of 
treaties  by,  240.  Ultimate  choice  of 
President  taken  from,  240.  Length 
of  term  in,  240.  Biennial  change  in, 
241.  To  try  impeachments,  261. 
Quorum  of,  262.  President  of,  263. 
May  choose  president  pro  tempore, 
264.  Choice  of  President  by,  quorum 
for,  401  ; majority  necessary  to,  401. 
President  pro  tempore  of,  when  to  act 
as  President  of  the  United  States, 
403.  Proposed  appointment  of  am- 
bassadors and  judges  by,  410.  For- 
eign relations  committed  to,  410. 
Treaty-making  power  of,  415.  May 
propose  treaty  to  President,  417. 
Certain  controversies  between  States, 
proposed  to  be  tried  by,  424.  Equal- 
ity of  States  in,  guaranteed  by  Con- 
stitution, 478. 

Shays’s  Rebellion,  causes  of,  I.  266. 
Progress  of,  266,  269.  How  arrested, 

270.  How  acted  upon  in  Congress, 

271.  Effect  of,  upon  the  political 
state  of  the  country,  273.  Abettors 
of,  opposed  to  i Constitution,  II. 
501. 


Sherman,  Roger,  one  of  the  com- 
mittee to  prepare  Declaration  of  In- 
dependence, I.  50.  Opposed  to  tax 
on  exports,  II.  294.  Views  of,  re- 
specting tax  on  slaves,  304.  Motion 
of,  respecting  payment  of  old  debts, 
321. 

Slavery , British  government  responsi- 
ble for  the  existence  of,  I.  87.  Com- 
plex relations  of,  II.  22.  Regarded 
by  Southern  statesmen  as  an  evil, 
155.  When  and  how  abolished  in 
States  now  free,  289.  Existed  in 
what  States  at  formation  of  Constitu- 
tion, 313.  Facts  respecting,  as  influ- 
encing judgment  on  Constitution, 
313.  A matter  of  local  concern,  313. 
State  laws  respecting  abolition  of, 
313.  In  Northwestern  Territory, 
proposals  for  excluding,  343.  State 
of,  in  1787,  451.  Probable  dura- 
tion of,  451.  Principle  of  common 
law  and  law  of  nations  respecting, 
451,  455.  Exclusively  a matter  of 
State  jurisdiction,  451.  Existed  in 
Colonies  at  very  early  period,  453. 
In  Massachusetts,  Dr.  Belknap’s 
article  on,  454.  Depends  wholly  on 
municipal  law,  457.  Fortunately  left 
to  State  control,  459.  Existence  of, 
unjustly  made  a reproach  on  United 
States,  465. 

Slaves,  as  affecting  ratio  of  repre- 
sentation, II.  19.  Control  of  States 
over,  never  meant  to  be  surrendered, 
20.  Necessarily  regarded  in  forming 
Constitution,  20.  As  affecting  basis 
of  representation,  46.  In  fixing  ratio 
of  representation,  included  as  inhabit- 
ants, 47.  Three-fifths  rule  respecting, 
whence  derived,  48.  In  fixing  ra- 
tio of  representation,  how  comput- 
ed, 147  ; admission  of,  proper,  147. 
Propriety  of  counting,  as  inhabitants, 
in  adjusting  representation,  150. 
Rule  respecting,  under  Confedera- 
tion, 150.  As  affecting  representa- 
tion, votes  respecting,  153.  Social 
and  political  condition  of,  anomalous, 
155.  Number  and  distribution  of, 
155.  An  important  element  in  de- 
termining rank  of  States,  155.  As 
affecting  representation  and  taxation, 
157.  As  subjects  of  taxation,  views 
of  statesmen  respecting,  159.  Com- 
promise respecting,  how  to  be  effect- 
ed, 163.  Extradition  of,  Pinckney’s 
proposition  concerning,  189.  Manu- 
mission of,  a matter  of  State  eon- 


INDEX. 


647 


trol,  286.  Representation  of,  a con- 
cession by  North,  why  made,  292 ; 
Morris’s  motion  respecting,  293  ; vote 
of  New  Jersey  respecting,  293.  Spe- 
cific tax  on  importation  of,  304. 
Word  not  used  in  Constitution  by- 
design,  305.  Ratio  of  increase  of, 
from  1790  to  1850,  308.  Condition 
of,  ameliorated  by  Constitution,  316. 
Advancing  public  sentiment  concern- 
ing, 316.  Colonization  of,  in  Africa, 
317.  Representation  of,  an  unimpor- 
tant anomaly,  317.  Emancipation 
of,  a local  question,  317.  Extra- 
dition of,  under  Constitution,  history 
of  clause  respecting,  450 ; a neces- 
sary provision  of  Constitution,  451  ; 
under  New  England  Confederation 
of  1643,  453  ; under  Ordinance  of 
1787,  454;  importance  of  proper 

understanding  of  clause  respecting, 
456 ; necessity  and  propriety  of  clause, 

459.  Condition  of,  much  better  un- 
der State  control,  462.  Increase  of, 
since  adoption  of  Constitution,  465. 
See  Federal  Census. 

Slave-Trade,  discountenanced  by  first 
Continental  Congress,  I.  24.  How 
dealt  with  by  the  Constitution,  456. 
Abolished  in  England,  457,  461. 

French  abolition  of,  457.  Danish 
abolition  of,  459.  Compromise  re- 
specting, 460.  Legislation  against, 

460.  Discussions  respecting,  in  Eng- 
land, 460.  Probable  encouragement 
of,  II.  1 53  ; embarrassments  respect- 
ing, 281.  State  action  respecting, 

285.  Necessity  of  definite  provision 
respecting,  285.  Duty  of  framers  of 
Constitution  respecting,  286.  Had 
been  abolished  by  no  nation  in  1787, 

286.  A proper  subject  for  national 
action,  286.  Aspect  of,  political,  287  ; 
moral,  287.  Economical  importance 
of,  to  Southern  States,  288.  Report 
of  committee  of  detail  respecting, 
290.  Grave  questions  concerning,  296. 
Right  to  continue,  insisted  on  by 
what  States,  297,  301.  Prospective 
prohibition  of,  provided  for,  304. 
Concessions  respecting,  timely,  305. 
Vote  of  States  respecting,  305.  Pa- 
triotic course  of  both  sections  re- 
specting, 306.  Effect  of  discontinu- 
ance of,  on  Southern  States,  308. 
State  rights  respecting,  before  Con- 
stitution, 314.  Tolerated  by  Euro- 
pean nations  at  formation  of  Consti- 
tution, 314.  Interdicted  by  ten  States 


before  Constitution,  314.  Refusal  of 
certain  States  to  grant  power  to  sup- 
press, immediately,  315.  Indefinite 
continuance  of,  had  Constitution  not 
been  formed,  315.  First  extinguished 
by  America,  317. 

South  Carolina,  a provincial  govern- 
ment, I.  4.  Constitution  of,  formed, 
120.  Tender-law  of,  253.  Appoints 
and  instructs  delegates  to  the  Con- 
vention, 369.  Opposed  to  equality 
of  suffrage  in  House  of  Representa- 
tives, II.  138 ; equal  vote  of  States  in 
Senate,  141,  148,  165,  217.  Had  five 
representatives  in  first  House,  149. 
Opposed  to  census  of  free  inhabitants, 
153;  executive  holding  office  during 
“good  behavior,”  173.  Vote  of,  re- 
specting citizenship  as  qualification 
for  office,  209  ; money  bills,  216,  218. 
Opposed  to  each  State  having  one 
vote  in  Senate,  227.  In  favor  of 
States  paying  members  of  Congress, 
259.  Refusal  of,  to  submit  to  tax  on 
exports,  280,  285.  Exports  of,  in 
one  year,  285.  Position  of,  in  Con- 
vention, respecting  slave-trade,  297, 
301.  Vote  of,  respecting  slave-trade, 
305.  Vote  on  Jefferson’s  resolve 
concerning  Northwestern  Territory, 
346.  Cession  by,  in  1787,  356. 
Vote  of,  on  suspension  of  habeas  cor- 
pus, 360.  Condition  of  acceptance 
of  Constitution  by,  452.  Motion  for 
surrender  of  fugitive  slaves  made  by, 
in  Constitutional  Convention,  453. 
Vote  of,  respecting  citizenship  clause 
in  Constitution,  453.  Debate  in 
legislature  of,  on  Constitution,  510. 
Convention  in,  to  vote  on  Constitu- 
tion, 511  ; importance  of  action  of, 
542.  Ratification  of  Constitution 
by,  544  ; rejoicings  at,  544  ; impor- 
tance of,  544.  Delegates  of,  respon- 
sibility assumed  by,  544.  A great 
exporting  State,  546.  Hesitation  of, 
to  concede  power  to  regulate  com- 
merce, 546.  Amendments  to  Con- 
stitution proposed  by,  548.  Eighth 
State  to  ratify  Constitution,  549. 

Southern  Slates,  views  of,  respecting 
regulation  of  commerce,  II.  290. 

Sovereignli /,  of  the  people,  established 
by  the  Revolution,  I.  379  ; necessary- 
consequences  of  declaration  of,  II. 
8.  Resides  in  the  people,  38.  Pow- 
ers of,  may  be  exercised  by  different 
agents,  377. 

Spain,  claims  the  exclusive  navigation 


648 


INDEX. 


of  the  Mississippi,  I.  312.  See  Mis- 
sissippi. 

Speaker , of  House  of  Representatives, 
II.  264 ; when  to  act  as  President,  403. 

Standing  Annies,  jealousy  of,  I.  81,  90. 

States,  interests  and  relations  of,  before 
Constitution,  II.  5.  Devotion  of, 
to  republican  liberty,  6.  Union  of, 
essential  to  republican  liberty,  9. 
Weakness  of,  without  union,  9. 
General  purposes  of,  in  calling  Con- 
stitutional Convention,  16.  Position 
of,  in  Convention,  27.  Powers  sur- 
rendered by,  to  Confederation,  27. 
Why  represented  in  Congress,  40. 
Diverse  interests  of,  as  affecting  rep- 
resentation, 43.  Tendency  of,  to  en- 
croach on  federal  authority,  51.  Pro- 
posed control  over  legislation  of,  by 
Congress,  52.  Population  of,  in  1790, 
table  of,  55.  Legislation  of,  control 
of  judicial  department  over,  66.  Ad- 
mission of,  75,  79,  109,  176,  340, 
344,  350,  354.  Cessions  by,  to 
Union,  76.  Republican  government 
guaranteed  to,  79,  83,  177,  458. 
Jealous  of  general  government,  91. 
Sovereignty  of,  how  reconciled  with 
national  sovereignty,  91.  Plan  to 
abolish,  92.  To  make  partial  sur- 
render of  power  under  Virginia 
plan,  95.  Sovereignty  of,  preserved 
under  New  Jersey  plan,  95.  Con- 
flicts of,  with  nation,  probable,  un- 
der Virginia  plan,  102,  103.  Strug- 
gle between  large  and  smaller,  re- 
specting representation,  104.  Pro- 
posed equalization  of,  108.  Popu- 
lations of,  at  formation  of  Constitu- 
tion, 116.  Relative  rank  of,  at  for- 
mation of  Constitution,  117.  Con- 
flict among,  as  to  national  and  fed- 
eral systems,  117.  Danger  of  anni- 
hilation of  sovereignty  of,  by  national 
government,  128,  377.  Danger  of 
alliances  of,  with  foreign  powers,  136. 
Preservation  of,  in  Congress,  conced- 
ed to  be  necessary,  139.  Divided  re- 
specting constitution  of  Senate,  145. 
Jealousy  among,  150.  Western, 
views  of  members  respecting,  150. 
Slave  and  free,  index  of  wealth  of, 
157.  Wealth  of,  not  measured  by 
land,  160.  Position  of,  in  Conven- 
tion, respecting  slaves,  161,  162. 
Wealth  of,  for  purpose  of  taxa- 
tion, determined  by  inhabitants,  163. 
Smaller,  concession  to,  in  constitu- 
tion of  Senate,  166.  Free  and  slave. 


populations  of,  compared,  168.  Re- 
lation of,  to  Confederation,  179. 
Whether  Constitution  could  be  rati- 
fied by  government  of,  180.  Voting 
by,  history  of  practice  of,  227.  Equal 
representation  of,  in  Senate,  just,  233. 
Union  desired  by,  from  different  mo- 
tives, 303.  Commercial  legislation 
of,  under  Confederation,  various,  310. 
Revenue  and  paper-money  systems 
of,  under  Confederation,  various,  310. 
Rights  guaranteed  to,  by  Constitu- 
tion, 314.  Power  of,  over  slave- 
trade,  anterior  to  Constitution,  314. 
Ports  of  one,  not  to  be  preferred  to 
those  of  another,  324.  Compacts 
between,  outside  of  Articles  of  Con- 
federation, 347.  New,  temporary 
governments  for,  Madison’s  motion 
respecting,  351.  Admission  of,  num- 
ber of  votes  requisite  for,  352;  by 
dismemberment  of  State,  352;  by 
junction,  354  ; difference  in  cases  of, 
357 ; provisions  for,  general,  358. 
Restraints  on  political  power  of,  362. 
Issuing  of  bills  of  credit  prohibited 
to,  364.  Laying  of  duties  and  im- 
posts by,  368.  Cannot  lay  duty  on 
tonnage,  370.  Keeping  of  troops  or 
ships  of  war  by,  371.  Agreements 
by,  with  another  State  or  foreign 
power,  371.  When  may  engage  in 
war,  371.  Governments  of,  how  far 
supreme,  377.  May  be  multiplied 
indefinitely  under  Constitution,  383. 
Levying  war  against,  not  treason 
against  United  States,  385.  Certain 
controversies  between,  proposed  to 
be  tried  by  Senate,  424.  Constitu- 
tional restrictions  on,  432.  Laws  of, 
constitutionality  of,  how  determined, 
439.  Courts  of,  not  likely  to  admin- 
ister justice  to  foreigners,  &e.,  442. 
Different,  controversies  between  citi- 
zens of,  442  ; grants  of  lands  by, 
jurisdiction  of  cases  respecting,  444. 
A party  to  a suit,  jurisdiction  in  cases 
of,  444.  Foreign,  jurisdiction  in 
cases  of,  444.  Full  faith  given  to 
acts,  &c.  of,  449.  Have  exclusive 
regulation  of  domestic  institutions, 
451.  May  exclude  foreigners,  457. 
Republican  government  guaranteed 
to,  object  of,  468.  Domestic  violence 
in,  application  to  general  govern- 
ment in  case  of,  469.  Competency 
of,  to  abolish  constitutions,  469. 
Must  have  executive  and  legislature, 
470.  Protection  of,  against  domestic 


INDEX. 


649 


violence,  472.  Equality  of,  in.  Senate, 
for  ever  guaranteed  by  Constitution, 
478.  Refusal  of,  to  comply  with 
requisitions  of  Congress,  572.  See 
New  States. 

State  Constitutions,  formation  of,  I.  116. 

State  Governments,  how  formed,  I.  36. 

State  Sovereignty , early  assertion  of,  I. 
90. 

Slop  Laws.  See  Debts. 

Story,  Joseph,  views  of,  respecting 
President’s  power  to  adjourn  Con- 
gress, II.  420. 

Suffrage,  Rule  of,  Governor  Randolph’s 
resolution  respecting,  II.  35.  Change 
in,  opposed  by  Delaware,  36.  In 
Continental  Congress,  42.  In  Con- 
federation, 42.  In  Senate,  48.  Eor 
House  of  Representatives,  great  de- 
bate on,  135.  According  to  Virginia 
plan,  145.  Different  in  different 
States,  174,  198.  Not  universal  in 
any  State,  471. 

Sullivan,  General,  president  of  New 
Hampshire  Convention,  II.  541. 

Sullivan,  James,  Governor  of  Mas- 
sachusetts, II.  541. 

Superintendent  of  the  Finances,  ap- 
pointed, 1. 174.  Sec  Robert  Mor- 
ris. 

Supremacy  of  United  States,  meaning 
and  scope  of,  II.  376.  Of  States, 
extent  of,  377.  Of  Constitution,  as 
affecting  national  growth,  383. 

Supreme  Court,  tenure  of  office  of,  II. 
67.  Judges  of,  not  removable  by 
address,  68,  73  ; compensation  of,  68  ; 
by  whom  appointed,  68.  To  deter- 
mine constitutional  questions,  74. 
Eunctions  of,  compared  with  those  of 
State  courts,  74.  Judges  of,  propos- 
ed appointment  of,  by  Senate,  223, 
230,  410.  Appointment  of,  propo- 
sals concerning,  234.  Sole  interpre- 
ters of  Constitution,  380.  Judges  of, 
to  be  nominated  by  President,  418  ; 
tenure  of  office  and  salaries  of,  423. 
One,  under  Constitution,  423.  Origi- 
nal and  appellate  jurisdiction  of,  424. 
Appellate  jurisdiction  of,  ambiguity 
concerning,  428.  Doubts  about  con- 
ferring power  upon,  to  declare  law 
unconstitutional,  434. 


T. 

Talleyrand,  Prince,  opinion  of,  re- 
specting Hamilton,  I.  410. 

82 


Taxation,  right  of,  denied  to  Parlia- 
ment, I.  20.  How  distinguished  from 
regulation  of  trade,  20.  Inseparable 
from  representation,  20,  II.  157. 
Difficulty  of  applying  combined  rule 
of  wealth  and  numbers  to,  158.  Re- 
port of  committee  of  detail  respect- 
ing, 290.  By  general  government, 
Mason’s  objections  to,  557.  See 
Colonies. 

Taxes,  odious  to  the  people  of  United 
States,  I.  180.  Power  of  Congress 
to  collect,  II.  322. 

Tender,  State  laws  respecting,  restraint 
on,  II.  365. 

Tender  Law  of  Massachusetts,  I.  268. 
See  Debts. 

Territory,  power  of  Congress  over,  un- 
der the  Confederation,  I.  141.  Au- 
thority of  Congress  over,  under  Con- 
stitution, II.  340  ; purpose  of  provis- 
ion respecting,  355 ; diverse  views 
concerning,  358.  See  Western  Ter- 
ritory and  Northwestern  Territory. 
Territorial  Governments,  power  to 
frame,  in  Ordinance  of  1787,  II.  345. 
Theory,  danger  of  adhering  too  firmly 
to,  II.  129. 

Thompson,  Charles,  Secretary  of 
first  Continental  Congress,  I.  14. 
Ticknor,  George, cited  fora  saying 
of  Jefferson  concerning  the  Revolu- 
tionary Congress,  I.  64  ; for  a saying 
of  Talleyrand  about  Hamilton,  410. 
Tonnage,  duty  on,  States  prohibited  to 
lay,  ll.  370  ; proposed  exception  re- 
specting, 370. 

Tories,  how  dealt  with  by  Continental 
Congress,  I.  36;  in  New  Hampshire, 
65.  Washington’s  opinion  respecting, 
65.  Movements  of,  in  the  neighbor- 
hood of  New  York,  66  ; how  met  by 
Washington,  66.  Steps  taken  by 
Congress  to  disarm,  68.  Misunder- 
standing respecting,  between  Wash- 
ington and  Congress,  69.  Subject 
referred  to  local  authorities,  72.  Re- 
lations of  persons  and  property  of,  to 
the  Union,  251. 

Trade,  inter-colonial,  before  the  Revo- 
lution, I.  9.  Regulation  of,  by  Par- 
liament, distinguished  from  taxation, 
20.  With  Colonies  prohibited  by' 
Parliament,  December,  1775, 38.  See 
Colonies,  Commerce,  Continental  Con- 
gress, and  Parliament. 

Treason,  definition  of,  in  Constitution, 
origin  and  purpose  of,  II.  384.  Na- 
ture of  evidence  of,  386.  Punish- 


VOL.  II. 


650 


INDEX. 


ment  of,  to  be  declared  by  Congress, 
386;  how  limited  by  Constitution, 
386.  President’s  power  to  pardon, 
different  views  respecting,  414. 

Treasury  Department,  first  established, 
I.  35. 

Treaty  of  amity  and  commerce  with 
France,  Sweden,  and  the  Nether- 
lands, I.  279.  Negotiation  for,  with 
the  Netherlands,  280  ; with  Sweden, 
281. 

Treaty  of  Alliance  with  France,  I.  156. 

Treaty  of  Peace  signed  and  ratified, 
I.  155,  187,  235,  237.  Objects  se- 
cured by,  249.  How  violated  by 
certain  States,  254,  257.  Southern 
boundary  of  the  United  States 
fixed  by,  312.  Accompanied  by  a 
secret  article,  312,  313.  Question 
respecting,  II.  415. 

Treaty  Power  under  the  Confederation, 
I.  325. 

Treaties , supreme  law  of  land,  II.  170, 
372,  374.  Proposition  that  Senate 
should  make,  223.  Negotiation  of, 
by  numerous  body,  embarrassing, 
232.  Making  of,  proposals  concern- 
ing, 234.  Provision  respecting,  ori- 
gin of,  240 ; how  modified,  414. 
Rule  of  Confederation  respecting, 

416.  May  be  proposed  by  Senate, 

417.  Jurisdiction  over  cases  arising 
under,  430.  Cases  arising  under,  how 
settled,  440.  Power  to  make,  under 
Confederation,  440. 

Trial  by  Jury,  of  the  vicinage,  one 
of  the  rights  of  the  Colonies,  I.  23. 
Under  Constitution,  II.  424.  Pro- 
vision for,  in  civil  cases,  not  in  Con- 
stitution originally,  427  ; supplied  by 
amendment,  427.  Guaranty  of,  re- 
quired by  many  States,  429.  For 
crimes,  provisions  respecting,  431. 
Omission  to  secure,  a strong  argu- 
ment with  some  against  Constitution, 
498. 

Tucker,  George,  cited  about  Madi- 
son, I.  421. 

Tyler,  John,  opposed  to  Constitu- 
tion, II.  506. 


U. 

Union,  origin  of,  I.  3.  Unknown  to 
the  colonial  condition,  7.  Power  to 
form,  a result  of  the  Revolution,  8. 
Proposal  of,  in  1754,  8.  Proposed  in 
1773,  10.  Virginia  recommends,  11, 


II.  12.  As  established  by  the  Con- 
federation, I.  142.  Saved  by  the 
proposal  of  the  revenue  scheme,  188. 
Necessary  to  preserve  the  good  faith 
of  the  country,  189.  Of  the  people, 
idea  of,  373.  Change  in  character 
of,  II.  4.  Necessarily  republican,  10. 
Preservation  of,  essential  to  indepen- 
dence of  States,  10.  Purposes  of,  at 
first  indefinite,  12.  Previous  history 
of,  important,  13.  “ Exigencies  of,” 
13  ; how  only  to  be  provided  for,  19. 
Objects  of,  embraced  in  two  classes, 
13  ; how  ascertained,  13  ; different 
views  respecting,  39.  Proposed  pow- 
er in,  to  protect  and  uphold  govern- 
ments of  States,  79.  Dissolution  of, 
Madison’s  views  respecting,  136  ; 
Hamilton’s  views  respecting,  136  ; 
at  one  time  probable,  140.  General 
interests  of,  power  to  legislate  for, 
170.  Success  of,  to  what  attributa- 
ble, 380.  Sovereignty  of,  and  of 
States,  no  conflict  between,  380.  Ca- 
pacity of,  for  territorial  expansion, 
cause  of,  381.  Theory  of,  respecting 
domestic  institutions  of  States,  451. 

“ United  Colonies ,”  term  of,  first  adopt- 
ed, I.  33. 

United  States  of  America,  title  of, 
adopted,  I.  52,  142. 

United  States,  character  of,  at  stake,  I. 
179.  Laws  and  treaties  of,  supreme 
law  of  States,  II.  170,  372.  Guar- 
anty by,  of  State  institutions,  177. 
Became  proprietor  of  crown  lands, 
352.  Title  of,  to  vacant  lands,  357. 
Officer  of,  not  to  accept  present,  &c. 
from  foreign  king,  &c.,  362.  Reso- 
lutions respecting  supremacy  of  gov- 
ernment of,  372,  373.  Supremacy  of, 
meaning  and-  scope  of,  376.  Gov- 
ernment of,  unlike  any  other,  379 ; 
determines  its  own  powers,  379 ; safe- 
guard of,  379  ; success  of,  to  what 
attributable,  379.  Constitution,  no 
impediment  to  growth  of,  383.  Trea- 
son against,  definition  of,  385.  Im- 
portance of  preserving  federal  char- 
acter of  government  of,  392.  Rela- 
tion of  government  to  citizens  of, 
432.  A party  to  a suit,  jurisdiction 
of  cases  of,  444. 


V. 

Valuation.  See  Land  and  Contribution. 
Vermont,  provision  for  admission  of, 


INDEX. 


651 


II.  353.  Within  asserted  limits  of 
New  York,  353. 

Vessels,  entry  and  clearance  of,  II. 
324.  Payment  of  duties  by,  324. 

Veto,  an  essential  power,  II.  57.  Bill 
may  be  passed  notwithstanding,  264. 
Of  President  qualified,  265.  Of  king 
of  England  absolute,  265  ; how  sig- 
nified, 265  ; in  disuse  since  William 
the  Third,  266.  History  of,  in  Con- 
stitutional Convention,  267.  Mean- 
ing of  “two  thirds”  in  provisions  re- 
specting, 267.  Power  of,  proposed  to 
be  given  to  Council  of  Revision,  438. 
Vice-President,  ex  officio  President  of 
Senate,  II.  264.  Has  only  casting  vote 
in  Senate,  264,  396.  Choice  of,  em- 
barrassments respecting,  390.  Rea- 
sons for  having,  395.  Ultimate  elec- 
tion of,  by  Senate,  396,  401.  When 
to  act  as  President,  400.  Changes  in 
appointment  of,  400.  Qualifications 
for,  401. 

Virginia , a provincial  government,  I.  4. 
Advises  a Continental  Congress,  1 1 . 
Elects  delegates,  12.  Constitution 
of,  formed,  120.  Effect  of  claim  of, 
to  Western  Lands,  132.  Cedes  the 
Northwestern  Territory,  137,  295. 
Repeals  her  act  granting  imposts, 
175.  Stop-law  of,  253.  Action  of, 
concerning  Western  posts,  258.  Op- 
poses the  surrender  of  the  Mississippi, 
315.  Action  of,  leading  to  a general 
commercial  convention,  340,  343. 
Appoints  and  instructs  delegates  to 
the  Convention,  367.  Measures  of, 
respecting  commerce,  423.  First  to 
declare  for  Union,  II.  12.  Plan  of 
government  proposed  by,  89  ; Ham- 
ilton’s doubts  respecting,  99  ; incon- 
sistency in,  101,  103  reported  to 
Convention,  109 ; vote  on,  109 ; 
chasm  in,  133.  Opposed  to  election 
of  Senators  by  State  legislatures, 
135  ; to  equality  of  suffrage  in  House 
of  Representatives,  138  ; to  equality 
of  States  in  Senate,  141,  148,  165, 
217.  Had  ten  Representatives  in 
first  House,  149.  In  favor  of  census 
of  free  inhabitants,  153  ; of  executive 
holding  office  during  “good  behav- 
ior,” 173.  Vote  of,  respecting  citi- 
zenship as  qualification  for  office, 
209  ; money  bills,  216,  218.  Opposed 
to  each  State  having  one  vote  in  Sen- 
ate, 227  ; to  impeachments  being  tried 
by  Senate,  262 ; to  taxing  exports, 
296.  Vote  of,  respecting  slave-trade, 


305.  Cession  by,  in  1784,  342. 
Strong  opposition  to  Constitution 
in,  504.  Statesmen  of,  504.  Char- 
acter of  people  of,  504.  Great  influ- 
ence of  Washington  in,  505.  Effect 
of  action  of  New  Hampshire  on,  510. 
Convention  of,  meets  at  Richmond, 
510,  549 ; parties  in,  nearly  balanced, 
529,  568 ; anxiety  respecting  action 
of,  542,  549  ; eminence  of  members 
of,  551  ; responsibility  resting  on,  551 ; 
discussion  on  Constitution  in,  554. 
Had  ratified  Constitution  before  news 
from  New  Hampshire,  578.  Con- 
vention of,  final  propositions  of 
friends  of  Constitution  in,  579.  Rat- 
ification of  Constitution  by,  how 
finally  effected,  579.  Form  of 
amendments  and  Bill  of  Rights  pro- 
posed by,  581.  Address  prepared  by 
opponents  of  Constitution  in,  582. 
Adoption  of  Constitution  by,  rejoic- 
ings at,  582. 

Virginia  and  Maryland,  efforts  of,  to 
regulate  the  trade  of  the  Potomac  and 
the  Chesapeake,  I.  341. 

Virginia  Reservation,  note  on,  I.  296. 
Voters,  qualifications  of,  in  different 
States,  H.  198. 


W. 

War,  power  to  declare,  proposed  to 
be  given  to  two  branches  of  Con- 
gress, II.  231.  To  be  declared  by 
Congress,  332,  413.  When  States 
may  engage  in,  371.  Ships  of,  not 
to  be  kept  by  States  in  time  of 
peace,  371.  And  peace,  power  of 
President  to  make,  411.  To  be 
prosecuted  by  President,  413. 
Washington,  appointed  and  com- 
missioned commander-in-chief,  I.  33. 
Arrives  at  Cambridge,  33.  Mode  of 
his  appointment  as  commander-in- 
chief,  4 1 . Previous  history  and  char- 
acter of,  41.  Embarrassments  of,  in 
the  early  part  of  the  war,  55.  Opin- 
ions and  actions  of,  respecting  Tories, 
65.  Urges  Congress  to  establish  prize 
court,  75.  On  the  necessity  for  a 
standing  army,  91.  Leaves  Boston 
for  New  York,  91.  Compelled  to 
abandon  New  York,  91.  Retreats 
through  New  Jersey,  96.  Complains 
of  his  situation,  96.  Asks  for  extra- 
ordinary powers,  100.  Dictatorial 
powers  conferred  on,  100;  apology 


652 


INDEX. 


for,  101.  Requires  oath  of  allegiance 
to  United  States,  106.  Proclamation 
by,  at  Morristown,  in  1777,  106. 
Powers  conferred  on,  in  1776,  jeal- 
ousy respecting,  106.  Opinion  of, 
respecting  an  oath  of  allegiance,  108. 
Third  effort  of,  to  raise  a new  ar- 
my, 109.  Embarrassments  of,  110. 
Thwarted  by  the  local  authorities, 
112.  Adheres  to  a plan  for  the  cam- 
paign, 112.  Anxious  about  the  fall- 
ing off  of  Congress,  127.  Letters  of, 
to  the  States,  in  1782,  157  ; to  the 
President  of  Congress,  158,  162.  Sit- 
uation of,  158.  Warns  Congress  re- 
specting the  officers,  167.  Painful 
position  of,  167.  Proceedings  of, 
upon  the  Newburgh  Addresses,  168. 
On  the  want  of  a revenue  power,  182. 
Relations  of,  to  the  country  during 
the  war,  200.  Opinions  of,  at  the 
close  of  the  war,  200.  Address  of,  to 
the  States,  on  resigning,  201.  On  a 
peace  establishment,  218,  219.  Re- 
signs as  commander-in-chief,  235. 
Address  to,  235.  On  the  insurrec- 
tion in  Massachusetts,  274.  Plans 
communications  with  Western  settle- 
ments, 310.  Opinions  of,  respecting 
the  navigation  of  the  Mississippi,  311, 
315.  Opinions  of,  in  1785,  on  the 
state  of  the  country,  333.  Connection 
of,  with  the  plan  of  a general  Conven- 
tion, 341.  Pressed  to  attend  the  gen- 
eral Convention,  365,  397.  On  the 
idea  of  a monarchical  government 
for  the  United  States,  370.  At  Mount 
Vernon,  393.  Views  of,  on  public 
affairs,  394.  Declines  to  attend  the 
general  Convention,  399 ; reconsid- 
ers and  attends,  399.  Reception  of, 
at  Philadelphia,  401.-  Placed  in  the 
chair  of  the  Convention,  401.  Opin- 
ions of,  401.  Character  of,  as  a states- 
man, 404.  Meets  the  Alexandria 
commissioners  at  Mount  Vernon, 
425.  Failure  of  civil  power  to  sus- 
tain, II.  14.  Difficulty  experienced 
by,  as  President,  in  preserving  neu- 
trality and  excluding  foreign  influ- 
ence, 82.  In  Convention,  confined 
himself  to  duties  of  presiding  officer, 
213.  Suggestion  of,  respecting  ratio 
of  representation  in  Congress,  adopt- 
ed, 213.  In  favor  of  tax  on  exports, 
284.  Early  nominated  for  President, 
391.  Received  no  pay  as  command- 
er-in-chief, 405.  Practice  of,  respect- 
ing cabinet,  409.  Leading  man  in 


Constitutional  Convention,  476.  Tra- 
dition respecting  words  of,  before 
signing  Constitution,  487.  Views  of, 
respecting  consequences  of  rejection 
of  Constitution,  487.  Unbounded 
confidence  of  people  in,  498.  Great 
influence  of,  in  Virginia,  505.  Copies 
of  Constitution  sent  by,  with  expres- 
sion of  opinion,  509.  Opinion  of, 
respecting  action  of  Maryland  on 
Constitution,  542.  Not  a member 
of  Virginia  convention,  551.  Justi- 
fies course  of  Federalists  in  New 
York  convention,  590.  Administra- 
tion of,  topics  appropriate  to  history 
of,  604. 

Washington,  City  of,  an  object  of  affec- 
tion and  pride,  II.  277.  See  Seat  of 
Government. 

Webster,  Daniel,  compared  with 
Hamilton,  I.  419. 

Webster,  Noah,  recommends  a new 
government,  I.  350. 

Webster,  Pelatiah.  recommends  a 
general  Convention,  I.  350. 

Weights  and  Measures,  standard  of, 
fixed  by  Congress,  II.  328. 

I Vest  Florida,  secret  article  respecting, 
in  the  Treaty  of  Peace,  I.  312. 

West  Point,  academy  at,  suggested,  I. 
218. 

Western  Lands,  claims  of  the  States  to, 
I.  131.  Conflicting  interests  of  the 
States  concerning,  132.  Surrender 
of  claim  to,  by  New  York,  133.  Ces- 
sions of,  urged  by  Congress  in  1780, 
134.  Motives  of  the  cession  of,  137. 
Surrender  of  claim  to,  by  Virginia, 
137.  Become  the  bond  of  the  Pinion, 
140.  Power  of  Congress  over,  under 
the  Confederation,  141. 

Western  Posts.  See  Military  Posts. 
Western  Settlements,  position  of,  after 
the  peace,  I.  309.  Connection  of, 
with  the  Atlantic  coast,  310.  Alarm 
of,  about  the  Mississippi,  318. 

Western  States,  prospective  charac- 
ter of,  II.  300.  Vast  resources  of, 
310. 

Western  Territory,  controversy  respect- 
ing, before  the  adoption  of  Articles 
of  Confederation,  I.  291.  Cessions 
of,  invited,  292 ; Congress  declares 
certain  trusts  respecting,  293.  States 
to  be  formed  in,  293.  Power  of  Con- 
gress to  deal  with,  293.  Cession  of, 
by  New  York,  293 ; by  Virginia,  295. 
Further  legislation  respecting,  and 
further  trusts  declared,  296.  Admis- 


INDEX. 


653 


sion  of  States  from,  298.  Further 
cessions  of,  urged,  299.  Proposition 
by  Eufus  King  to  exclude  slavery 
from,  299.  Cession  of,  by  Massa- 
chusetts, 299 ; by  Connecticut,  300. 
Ordinance  for  disposing  of  lands  in, 

300.  Cessions  of,  by  Virginia,  mod- 
ified, 300 ; by  South  Carolina,  301  ; 
by  North  Carolina,  301  ; by  Georgia, 

301.  See  Northwestern  Territory. 
West  Indies,  trade  with,  II.  309. 

Whale  Fishery  in  Massachusetts  before 
the  Revolution,  I.  135. 

Williamsburg,  convention  at,  I.  12. 
Williamson,  Hugh,  views  of,  re- 
specting rule  of  suffrage  for  House 
of  Representatives,  II.  135;  money 
bills,  218. 

Wilson,  James,  birth  and  career  of,  I. 
462.  Sent  to  the  Constitutional  Con- 
vention, 462.  Services  of,  462.  Made 
a justice  of  the  Supreme  Court  of  the 


United  States,  465.  Death  of,  465. 
His  defence  of  the  Constitution,  465. 
In  favor  of  larger  House  of  Repre- 
sentatives, II.  213 ; tax  on  exports, 
284.  One  of  the  ablest  framers  of 
the  Constitution,  520.  Position  and 
arguments  of,  in  Pennsylvania  con- 
vention, 521.  Views  of,  respecting 
Bill  of  Rights,  522. 

Wolcott,  Oliver,  influence  of,  in 
Connecticut  convention,  II.  529. 


Y. 

Yeas  and  Nays,  one  fifth  of  members 
present  in  either  House  of  Congress 
may  require,  II.  263.  To  be  taken 
on  passing  bill  over  veto,  265. 
Yorktown,  Revolutionary  Congress 
assembles  at,  I.  113. 


THE  END. 


} 


